Exhibit 10.2
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE ("Amendment"), made and entered into as of
the 31 date of March, 2004, by and between PARAGON CENTRE HOLDINGS, LLC, a
Kentucky limited liability company ("Landlord") and TEXAS ROADHOUSE HOLDINGS
LLC, a Kentucky limited liability company ("Tenant");
WITNESSETH THAT:
WHEREAS, Paragon Centre Associates, LLC ("Original Landlord") and Tenant
entered into that certain Amended and Restated Lease dated August 15, 2003
("Lease"), for space in Two Paragon Centre as follows: 16,023 square feet of
rentable space known as Suite 400, 3,082 square feet of rentable space known as
Suite 100, 2,994 square feet of rentable space known as Suite 120, 2,313 square
feet of rentable space known as Suite 130, and 1,334 square feet of rentable
space known as Suite 140 all located in Two Paragon Centre, for a total of
25,746 square feet of rentable space ("Premises");
WHEREAS, Landlord is successor-in-interest to Original Landlord;
WHEREAS, Tenant now occupies all of the aforesaid Suites and desires to
extend the Initial Lease Term stated in the Lease as well as lease additional
space known as Suite 110 in Two Paragon Centre; and
WHEREAS, Tenant has a Right of First Offer to lease additional suites in
Two Paragon Centre, including Suite 110, and Tenant has notified Landlord of its
intent to lease Suite 110; and
WHEREAS, Landlord and Tenant desire to amend certain other terms and
conditions of the Lease and evidence their agreements and other matters by means
of this Amendment;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt, adequacy and sufficiency
of which are hereby acknowledged, the Lease is hereby amended and the parties
hereby to agree as follows:
1. Landlord and Tenant agree to extend the initial Term of the Lease for an
additional three (3) years. The Expiration Date under Article 1 of the
Lease shall be amended to read March 31, 2014.
2. Landlord agrees to lease and Tenant agrees to accept in its "AS IS WHERE
IS" condition, Suite 110 in Two Paragon Centre deemed to be 2,416 square
feet of rentable space beginning April 1, 2004, with an Expiration Date of
March 31, 2014.
3. Landlord and Tenant agree that the Base Rent for Suites 400, 100, 120, 130,
and 140 for the last three years of the Term beginning April l, 2011
through March 31, 2014, will be $18.25 per rentable square foot. Section
3.1 of the Lease will be amended as follows:
Months of Base Rent for Base Rent
Term Premises Rentable Square Foot Total Base Rent Monthly
--------------------------------------------------------------------------------------------------
93-129 Suites 100, 120, $ 18.25 $ 469,864.50 $ 39,155.38
130, 140 and 400
4. Landlord and Tenant agree that the Base Rent for Suite 110 of Two Paragon
Center will be $18.50 per rentable square foot for the period beginning
April 1, 2004 and expiring on March 31, 2014. Section 3.1 of the Lease will
be amended as follows:
Months of Base Rent for Base Rent
Term Premises Rentable Square Foot Total Base Rent Monthly
--------------------------------------------------------------------------------------------------
9-129 Suite 110 $ 18.50 $ 44,696.00 $ 3,724.67
5. Tenant and Landlord each represent and warrant to the other that neither
party nor its officers or agents nor anyone acting on its behalf has dealt
with any real estate broker or agent other than CBRE/Nicklies who
represented Landlord in the negotiating or making of this Amendment, and
Tenant and Landlord agree to indemnify and hold each other, their agents,
employees, partners, directors, shareholders and officers harmless from all
liabilities, costs, demands, judgments, settlements, claims and losses,
including reasonable attorneys' fees and costs, incurred by a party in
conjunction with any such claim of any other agent, broker or brokers.
6. Paragraph 1 of the Lease regarding the address and notice to Landlord,
shall be amended to provide that the address of Landlord is, and all
notices to Landlord shall be sent as follows:
Notices to Landlord:
Paragon Centre Holdings, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
With a copy to:
Paragon Centre Holdings, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Property Manager
7. All capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to them in the Lease.
8. This Amendment shall not be valid and binding on Landlord and Tenant unless
and until it has been completely executed by and delivered to both parties.
EXCEPT AS expressly amended and modified hereby, the Lease shall otherwise
remain in full force and effect, the parties hereto hereby ratifying and
confirming the same, including but not limited to the Special Stipulations
detailed in Exhibit C of the Lease. To the extent of any inconsistency between
the Lease and this Amendment, the terms of this Amendment shall control as to
the subject matter covered herein.
IN WITNESS WHEREOF, the undersigned parties have duly executed this Amendment
as of the date and year first above written.
LANDLORD: TENANT:
PARAGON CENTRE HOLDINGS, LLC TEXAS ROADHOUSE
A Kentucky limited liability company HOLDINGS LLC
a Kentucky limited liability company
By: WKT Restaurant Corp.,
a Kentucky corporation, its Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇. ▇. ▇▇▇▇
---------------------------- --------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager Title: President
TWO PARAGON CENTRE
AMENDED AND RESTATED LEASE AGREEMENT
BY AND BETWEEN
PARAGON CENTRE ASSOCIATES, LLC, AS LANDLORD
AND
TEXAS ROADHOUSE HOLDINGS LLC, AS TENANT
August 15, 2003
LEASE AGREEMENT
TABLE OF CONTENTS
ARTICLE I. Basic Lease Provisions
ARTICLE II.
Section 2.1 Premises
Section 2.2 Term
Section 2.3 Use
ARTICLE III.
Section 3.1 Rental Payments
Section 3.2 Additional Rent
Section 3.3 Security Deposit
ARTICLE IV.
Section 4.1 Services
Section 4.2 Keys and Locks
Section 4.3 Graphics and Building Directory
ARTICLE V.
Section 5.1 Occupancy of Premises
Section 5.2 Entry for Repairs and Inspection
Section 5.3 Hazardous Materials
ARTICLE VI.
Section 6.1 Leasehold Improvements
Section 6.2 Repairs by Landlord
Section 6.3 Repairs by Tenant
Section 6.4 Liens
Section 6.5 Indemnification
ARTICLE VII.
Section 7.1 Condemnation
Section 7.2 Force Majeure
Section 7.3 Fire or Other Casualty
Section 7.4 Insurance
Section 7.5 Waiver of Subrogation Rights
ARTICLE VIII.
Section 8.1 Default by Tenant
Section 8.2 Landlord's Remedies
Section 8.3 Duty to Relet or Mitigate
Section 8.4 Reentry
Section 8.5 Rights of Landlord in Bankruptcy
Section 8.6 Waiver of Certain Rights
Section 8.7 NonWaiver
Section 8.8 Holding Over
Section 8.9 Abandonment of Personal Property
ARTICLE IX.
Section 9.1 Transfers
Section 9.2 Assignment by Landlord
Section 9.3 Limitation of Landlord's Liability
ARTICLE X.
Section 10.1 Subordination
Section 10.2 Estoppel Certificate or Three-Party Agreement
Section 10.3 Notices
ARTICLE XI.
Section 11.1 Right to Relocate Tenant
Section 11.2 Rights and Remedies Cumulative
Section 11.3 Legal Interpretation
Section 11.4 Tenant's Authority
Section 11.5 No Brokers
Section 11.6 Consents by Landlord
Section 11.7 Joint and Several Liability
Section 11.8 Independent Covenants
Section 11.9 Attorneys' Fees and Other Expenses
Section 11.10 Recording
Section 11.11 Disclaimer; Waiver of Jury Trial
Section 11.12 No Access to Roof
Section 11.13 Parking
Section 11.14 No Accord or Satisfaction
Section 11.15 Acceptance
Section 11.16 Waiver of Counterclaim
Section 11.17 Time Is of the Essence
Section 11.18 Counterparts
Section 11.19 Execution and Delivery of Lease
Section 11.20 Real Estate Investment Trust
EXHIBITS
Exhibit A - Land
Exhibit B - Floor Plan(s) of Premises
Exhibit C - Special Stipulations
Exhibit D - Commencement Date Agreement
Exhibit E - Work Letter Agreement
Exhibit F - Building Rules and Regulations
Exhibit G - Form of Subordination, Non-Disturbance and Attornment
Agreement
AMENDED AND RESTATED LEASE AGREEMENT
THIS AMENDED AND RESTATED LEASE AGREEMENT (this "LEASE") is made and
entered into as of the _____ day of August, 2003, by and between PARAGON CENTRE
ASSOCIATES, LLC, a Georgia limited liability company ("LANDLORD"), whose address
is c/o NTS Development Company, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, and TEXAS ROADHOUSE HOLDINGS LLC, a Kentucky limited liability company
("TENANT"), whose address is ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇; Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., General Counsel. Subject to all of
the terms, provisions, covenants and conditions of this Lease, and in
consideration of the mutual covenants, obligations and agreements contained in
this Lease, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Landlord and Tenant agree as
follows:
ARTICLE I.
BASIC LEASE PROVISIONS
As of the Commencement Date (as defined below), this Lease shall be a
replacement for and shall operate to terminate that certain Lease Agreement
dated September 24, 1997 by and between Landlord and Strategia Corporation, as
assigned to Tenant pursuant to (i) that certain Assignment of Lease and Security
Deposit, Assumption Agreement dated June 30, 1999 by and between Strategia
Corporation and Tenant, and Landlord's Consent dated June 30, 1999 by and
between Landlord, Strategia Corporation and Tenant, together with all amendments
thereto that may have been made from time to time by and between the parties;
and (ii) that certain Agreement Regarding Satellite Antenna dated November 6,
2001 between Landlord and Tenant (collectively, the "Prior Lease"). Landlord,
for and in consideration of the rents and all other charges and payments
hereunder and of the covenants, agreements, terms, provisions and conditions to
be kept and performed hereunder by Tenant, hereby directly renews, demises and
leases to Tenant, and Tenant hereby directly renews, hires, leases and takes
from Landlord, the premises described below, subject to all matters hereinafter
set forth and upon and subject to the covenants, agreements, terms, provisions
and conditions of this Lease for the term hereinafter stated. For purposes of
this Lease, the following terms shall have the meanings ascribed to them below:
BUILDING shall mean the approximately 61,704 square foot structure situated upon
the Land (hereinafter defined) commonly known as Two Paragon Centre located at
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as the same
currently exists or as it may from time to time hereafter be expanded or
modified.
COMMENCEMENT DATE shall mean:
- August 1, 2003 with respect to the Suite 400 Premises (as defined
below);
- January 1, 2004 with respect to the Suite 140 Premises (as defined
below);
- April 1, 2004 with respect to the Suite 120 Premises and the Suite 130
Premises (as defined below); and
- For Suite 100 Premises (as defined below), thirty (30) days after the
date of delivery to Tenant of the Suite 100 Premises in its "as-is"
condition.
COMPLEX shall mean the Project, together with that certain office building known
as One Paragon Centre located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, the
Land upon which the Building and One Paragon Centre are located, and all
improvements and additional facilities serving or benefiting the Building and
One Paragon Centre from time to time.
EXPENSE STOP shall mean $6.00 per rentable square foot.
EXPIRATION DATE shall mean March 31, 2011.
GUARANTOR (whether one or more) shall mean None.
LAND shall mean that certain tract of land situated in Jefferson County,
Kentucky, and more particularly described on EXHIBIT A attached hereto and
hereby made a part hereof.
LEASE YEAR shall mean each consecutive twelve (12) month period during the Term
commencing with the Commencement Date.
PROJECT shall mean the Building, together with the Land, the parking garage or
parking area serving the Building, if any, all other improvements situated on
the Land or directly benefiting the Building, and all additional facilities or
improvements directly benefiting the Building that may be constructed in
subsequent years.
SECURITY DEPOSIT shall mean $24,702.13, currently being held by Landlord under
the Prior Lease.
ARTICLE II.
SECTION 2.1 PREMISES. The Premises demised by this Lease shall
initially consist of a total 16,023 square feet of Rentable Area (as hereinafter
defined) known as Suite 400 on Floor 4 of the Building (the "Suite 400
Premises"), and shall be expanded upon the applicable Commencement Date above to
include 3,082 square feet of Rentable Area known as Suite 100 on Floor 1 of the
Building (the "Suite 100 Premises), 2,994 square feet of Rentable Area known as
Suite 120 on Floor 1 of the Building (the "Suite 120 Premises"), 2,313 square
feet of Net Rentable Area known as Suite 130 on Floor 1 of the Building (the
"Suite 130 Premises"); and 1,334 square feet of Net Rentable Area known as Suite
140 on Floor 1 of the Building (the "Suite 140 Premises") for a total of 25,746
square feet of Rentable Area (collectively, the "Premises"). The Premises are
outlined on EXHIBIT B attached hereto and hereby made a part hereof. All square
footage (the "Rentable Area") utilized in this Lease has been, or will be as to
future space, made by measuring the gross area within the inside surface of the
outer glass of the exterior walls of the Premises, to the mid-point of any walls
separating portions of the Premises from Common Areas and Services Areas,
subject to the following: (a) Rentable Area shall not include any Service Area;
(b) Rentable Area shall include a pro rata portion of the Common Areas in the
Building, such proration based upon the ratio of the Rentable Area within the
Premises to the total Rentable Area in the Building, both determined without
regard to the Common Areas; and (c) Rentable Area shall include and columns
and/or projection(s) which protrude into the Premises and/or the Common Areas.
For purposes of the foregoing, "Service Areas" shall mean those areas of the
Building within the outside walls used for elevator mechanical rooms, building
stairs, fire towers, elevator shafts, flue, vents, stacks, pipe shafts and
vertical ducts (but shall not include any such areas for the use of any
particular tenant); and "Common Areas" shall mean those areas of the Building
devoted to corridors, elevator foyers, atria, restrooms, mechanical rooms,
janitorial closets, electrical and telephone closets, vending areas and other
facilities provided for the common use or benefit of tenants generally and/or
the public. For all other purposes of this Lease except the foregoing
calculation of Rentable Area, the term "Common Areas" shall also mean all other
areas and facilities, including lobbies, parking facilities, sidewalks,
landscapings, driveways, restrooms and similar improvements, serving the
Building and/or the Project. Unless otherwise specifically designated, all
references to square footage or square feet in this Lease are to Rentable Area.
SECTION 2.2 TERM. The Term of this Lease with respect to a particular
portion of the Premises shall begin on the applicable Commencement Date set
forth above and shall expire on the Expiration Date unless extended or sooner
terminated in accordance with the provisions of this Lease. After the occurrence
of the Commencement Date for the Suite 100 Premises, Tenant and Landlord shall
execute a certificate in the form attached hereto as EXHIBIT D stipulating and
agreeing to the Commencement Date for the Suite 100 Premises. If the
Commencement Date should be changed for any reason, Landlord shall not be liable
or responsible for any claims, damages or liabilities in connection therewith or
by reason thereof. If Landlord is unable to deliver possession of the Premises
to Tenant as of the Commencement Date for any reason, including without
limitation the holding over of any tenant or occupant of the Premises, then the
term Commencement Date shall mean such subsequent date upon which Landlord is
able to deliver possession of the Premises to Tenant, and such failure to
deliver possession of the Premises on the earlier date shall not constitute a
default by Landlord hereunder or render Landlord liable for any loss or damage
that may be incurred as a result of such failure.
SECTION 2.3 USE. The Premises are to be used only for general office
purposes and for no other business or purpose without the prior written consent
of Landlord. No act shall be done in or about the Premises that is unlawful or
that will increase the existing rate of insurance on the Building. In the event
of a breach of this covenant, Tenant shall immediately cease the performance of
such unlawful act or such act that is increasing or has increased the existing
rate of insurance and shall pay to Landlord any and all increases in insurance
premiums resulting from such breach. Tenant shall not commit or allow to be
committed any waste upon the Premises, or any public or private nuisance or
other act or thing which disturbs the quiet enjoyment of any other tenant in the
Building. If any of Tenant's office machines or equipment unreasonably disturb
any other tenant in the Building, then Tenant shall provide adequate insulation,
or take such other action as may be necessary to eliminate the noise or
disturbance at its sole cost and expense. Tenant shall not, without Landlord's
prior consent, install any equipment, machine, device, tank or vessel which is
subject to any federal, state or local permitting requirement. Tenant, at its
expense, shall comply with all laws, statutes, ordinances and governmental
rules, regulations or requirements governing the installation, operation and
removal of any such equipment, machine, device, tank or vessel. Tenant, at its
expense, shall comply with all laws, statutes, ordinances, governmental rules,
regulations or requirements, and the provisions of any recorded documents now
existing or hereafter in effect relating to its use, operation or occupancy of
the Premises and shall observe such reasonable rules and regulations as may be
adopted and made available to Tenant by Landlord from time to time for the
safety, care and cleanliness of the Premises or the Building and for the
preservation of good order therein. The current rules and regulations for the
Building are attached hereto as EXHIBIT F. Without limiting the foregoing,
Tenant agrees to be wholly responsible at Tenant's sole cost and expense for any
accommodations or alterations which need to be made to the Premises to comply
with the provisions of the Americans With Disabilities Act of 1990, as amended.
ARTICLE III.
SECTION 3.1 RENTAL PAYMENTS.
(a) BASE RENT. Commencing on the Commencement Date for the Suite 400
Premises and continuing thereafter throughout the Term, Tenant shall pay the
Base Rent described in this paragraph, which is due and payable each Lease Year
during the Term hereof in twelve (12) equal installments on the first (1st) day
of each calendar month during the Term, and Tenant shall make such installments
to Landlord at Landlord's address specified in this Lease (or such other address
as may be designated by Landlord from time to time) monthly in advance. Base
Rent during the Term for the Suite 120 Premises, the Suite 130 Premises, the
Suite 140 Premises, the Suite 400 Premises, shall be as follows:
Base Rent Per Base Rent
Months of Term Premises Rentable Square Foot Total Base Rent Monthly
-------------- -------- -------------------- --------------- -------
1 - 5 Suite 400 only $ 16.25 $ 260,373.75 $ 21,697.81
6 - 8 Suites 140 and 400 only $ 16.25 $ 282,051.25 $ 23,504.27
9 - 24 Suites 120, 130, 140 and $ 16.25 $ 368,290.00 $ 30,690.83
400
25 - 48 Suites 120, 130, 140 and $ 16.75 $ 379,622.00 $ 31,635.17
400
49 - 92 Suites 120, 130, 140 and $ 17.75 $ 402,286.00 $ 33,523.83
400
The foregoing rent schedule shall be modified and memorialized in the agreement
set forth on EXHIBIT D upon the Commencement Date for the Suite 100 Premises.
The foregoing Base Rent includes the Expense Stop. So long as Tenant is not then
in default under this Lease, in the event Tenant has paid Landlord any Prepaid
Rent such Prepaid Rent shall be applied to the first (1st) monthly installment
of Base Rent due hereunder.
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(b) PARTIAL MONTH. If the Commencement Date is other than the first
(1st) day of a calendar month or if this Lease expires or terminates on a day
other than the last day of a calendar month, then the installments of Base Rent
for such month or months shall be prorated based upon multiplying the applicable
Base Rent by a fraction, the numerator of which shall be the number of days of
the Term occurring during said commencement or termination month, as the case
may be, and the denominator of which shall be the number of days in such month.
(c) PAYMENT; LATE CHARGE; PAST DUE RATE. The Base Rent, the Additional
Rent (hereinafter defined), any Prepaid Rent and any and all other payments
which Tenant is obligated to make to Landlord under this Lease shall constitute
and are sometimes hereinafter collectively referred to as "RENT". Tenant shall
pay all Rent and other sums of money as shall become due from and payable by
Tenant to Landlord in lawful money of the United States of America at the times
and in the manner provided in this Lease, without demand, deduction, abatement,
setoff, counterclaim or prior notice. Tenant hereby acknowledges that late
payment to Landlord of Rent or other sums due hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. If any Rent or other sum due from Tenant is
not received on or before its due date, then Tenant shall pay to Landlord
immediately upon Landlord's demand therefor a late charge in an amount equal to
five percent (5%) of such overdue amount, plus any attorneys' fees and costs
incurred by Landlord by reason of Tenant's failure to pay Rent and other charges
when due hereunder. Additionally, all Rent under this Lease shall bear interest
from the date due until paid at the lesser of twelve percent (12%) or the
maximum nonusurious rate of interest then permitted by the applicable laws of
the state in which the Building is located or the United States of America,
whichever shall permit the higher nonusurious rate, such interest being in
addition to and cumulative of any other rights and remedies which Landlord may
have with regard to the failure of Tenant to make any such payments under this
Lease.
SECTION 3.2 ADDITIONAL RENT.
(a) DEFINITIONS:
(i) "BASE OPERATING EXPENSES" is calculated by multiplying
the Expense Stop by the rentable area of the Premises. At the applicable
Commencement Date for each suite under this Lease, and in the event that this
Lease is later modified to further increase or to decrease the amount of
rentable square feet in the Premises demised hereby, the total amount of Base
Operating Expenses shall be adjusted, as appropriate, based upon the Expense
Stop, to reflect the new square footage of the Premises unless the amendment or
other written agreement modifying this Lease specifies otherwise.
(ii) "OPERATING EXPENSES" means all expenses, costs and
disbursements of every kind and nature relating to or incurred or paid in
connection with the ownership and operation of the Project, computed on an
accrual basis in accordance with generally accepted accounting principles
consistently applied, including but not limited to the following:
(A) wages and salaries of all persons engaged in the
operation, maintenance, security or access control of the Project, including all
taxes, insurance and benefits relating thereto;
(B) the cost of all supplies, tools, equipment and
materials used in the operation and maintenance of the Project, including rental
fees for the same, if such items are not purchased and amortized pursuant to
this SECTION 3.2 below;
(C) the cost of all utilities for the Project,
including but not limited to the cost of water and power, heating, lighting, air
conditioning and ventilating (excluding those costs billed to specific tenants)
of the Building and Project;
(D) the cost of all maintenance and service agreements
for the Project and the equipment therein, including but not limited to alarm
service, security service, access control, landscaping, window cleaning, pest
control, elevator maintenance and janitorial service;
(E) the cost of repairs and general maintenance,
excluding (y) repairs and general maintenance paid by proceeds of insurance, by
Tenant or by other third parties, and (z) alterations attributable solely to
tenants of the Building;
(F) amortization (together with reasonable financing
charges) of the cost of capital investment items which are installed for the
purpose of reducing operating expenses, promoting safety, complying with
governmental requirements or maintaining the quality of the Building;
(G) the cost of all insurance relating to the Project,
including, but not limited to, the cost of property insurance, casualty, rental
loss and liability insurance applicable to the Project and Landlord's personal
property used in connection therewith and the cost of deductibles paid on claims
made by Landlord;
(H) Landlord's and/or Landlord's managing agent's
accounting and audit costs and attorneys' fees applicable to the Project;
(I) all property management fees for the Project; and
(J) All taxes, assessments and governmental charges,
whether or not directly paid by Landlord, whether federal, state, county or
municipal and whether they are imposed by taxing districts or authorities
currently taxing the Project or by others subsequently created or otherwise, and
any other taxes and assessments, assessed against or attributable to the Project
or its operation, excluding, however, federal and state taxes on income, death
taxes, franchise taxes and any taxes imposed or measured on or by the income of
Landlord from the operation of the Project or imposed in connection with any
change of ownership of the Project together with the reasonable cost (including
attorneys,
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consultants and appraisers) of any negotiation, contest or appeal pursued by
Landlord in an effort to reduce any such tax, assessment or charge, and all of
Landlord's administrative costs in relation to the foregoing ("REAL ESTATE
TAXES"); PROVIDED, HOWEVER, that if at any time during the Term the present
method of taxation or assessment shall be so changed that the whole or any part
of the taxes, assessments, levies, impositions or charges now levied, assessed
or imposed on real estate and the improvements thereof shall be changed and as a
substitute therefor, or in lieu of or in addition thereto, taxes, assessments,
levies, impositions or charges shall be levied, assessed or imposed wholly or
partially as a capital levy or otherwise on the rents received from the Project
or the rents reserved herein or any part thereof, then such substitute or
additional taxes, assessments, levies, impositions or charges, to the extent so
levied, assessed or imposed, shall be deemed to be included within the Real
Estate Taxes to the extent that such substitute or additional tax would be
payable if the Project were the only property of the Landlord subject to such
tax.
(iii) "ADJUSTMENT PERIOD" means each calendar year occurring
during the Term beginning with calendar year 2003, which shall be the first
Adjustment Period.
(iv) "TENANT'S PRO RATA SHARE" means the percentage calculated
by dividing the rentable area of the Premises (numerator) by the rentable area
of the Building (denominator), and expressing the fraction as a percentage.
(b) GROSS-UP ADJUSTMENT. If the Building is less than fully occupied
or if Building standard Landlord services are not provided to the entire
Building during any Adjustment Period, then Operating Expenses for such
Adjustment Period shall be "grossed up" by Landlord to that amount of Operating
Expenses that, using reasonable projections, would normally be expected to be
incurred during the Adjustment Period if the Building was ninety-five percent
(95%) occupied and receiving Building standard Landlord services during the
Adjustment Period, as determined under generally accepted accounting principles
consistently applied.
(c) PAYMENT BY TENANT. If Tenant's Pro Rata Share of the Operating
Expenses for any Adjustment Period exceed the Base Operating Expenses (any such
excess being known collectively as the "EXPENSE INCREASE"), then Tenant agrees
to pay Landlord as additional rent (the "ADDITIONAL RENT") such Expense
Increase.
(d) MANNER OF PAYMENT.
(i) Landlord may give Tenant notice of Landlord's estimate of
amounts payable under this SECTION 3.2 for each Adjustment Period based upon
generally accepted accounting principles consistently applied. By the first day
of each month during the Adjustment Period, Tenant shall pay Landlord
one-twelfth (1/12th) of the estimated amount. If for any reason the estimate is
not given before the Adjustment Period begins, Tenant shall continue to pay on
the basis of the previous year's estimate, if any, until the month after the new
estimate is given.
(ii) Within one hundred twenty (120) days after each
Adjustment Period ends, or as soon thereafter as reasonably practical, Landlord
shall give Tenant a statement (the "STATEMENT") showing the: (A) actual
Operating Expenses for the Adjustment Period; (B) Base Operating Expenses; (C)
the Expense Increase for the Adjustment Period; (D) the amount of Tenant's Pro
Rata Share of the Expense Increase; (E) the amount, if any, paid by Tenant
during the Adjustment Period towards the Expense Increase; and (F) the amount
Tenant owes towards the Expense Increase or the amount Landlord owes as a
refund. Delay by Landlord in providing to Tenant any Statement shall not relieve
Tenant from the obligation to pay any Expense Increase upon the rendering of
such Statements.
(iii) If the Statement shows that the actual amount Tenant owes
for the Adjustment Period is less than any estimated Expense Increase paid by
Tenant during the Adjustment Period, Landlord shall return the difference (the
"OVERPAYMENT"). If the Statement shows that the actual amount Tenant owes is
more than any estimated Expense Increase paid by Tenant during the Adjustment
Period, Tenant shall pay the difference (the "UNDERPAYMENT"). The Overpayment or
Underpayment shall be paid within thirty (30) days after the Statement is
delivered to Tenant.
(iv) During any Adjustment Period in which this Lease is not
in effect for a complete calendar year, unless it was ended due to Tenant's
default, Tenant's obligation for Additional Rent for those Adjustment Periods
shall be prorated by multiplying the Additional Rent for the Adjustment Period
by a fraction expressed as a percentage, the numerator of which is the number of
days of the Adjustment Period included in the Term and the denominator of which
is 365.
SECTION 3.3 SECURITY DEPOSIT. As security for its full and faithful
performance of this Lease, Tenant has paid to Landlord and Landlord acknowledges
receipt of a security deposit in the amount of Twenty Four Thousand Seven
Hundred Two and 13/100 Dollars ($24,702.13) (the "SECURITY DEPOSIT"), which
Security Deposit is currently being held by Landlord under the Prior Lease. If
Tenant defaults with respect to any covenant or condition of this Lease,
including but not limited to the payment of Rent or any other payment due under
this Lease, Landlord may apply all or any part of the Security Deposit to the
payment of any sum in default or any other sum which Landlord may be required to
or deem necessary to spend or incur by reason of Tenant's default. In such
event, Tenant shall, upon demand, deposit with Landlord the amount so applied to
replenish the Security Deposit. Within thirty (30) days of the expiration or
sooner termination of this Lease, Landlord will refund Tenant the Security
Deposit less any amounts necessary to cure any default of Tenant under this
Lease.
ARTICLE IV.
SECTION 4.1 SERVICES.
(a) SERVICES PROVIDED. So long as no default by Tenant under this
Lease has occurred and is continuing, Landlord shall furnish to Tenant while
Tenant is occupying the Premises:
(i) Hot and cold domestic water in common use restrooms and
toilets in locations provided for general use and as reasonably deemed by
Landlord to be in keeping with the Project standards.
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(ii) Heating and air conditioning in season from 8:00 a.m. to
6:00 p.m. on Monday through Friday and 8:00 a.m. to 1:00 p.m. on Saturday,
excluding the hereinafter defined Holidays, subject to curtailment as required
by governmental laws, rules or regulations, in such amounts as are considered by
Landlord to be standard, but such service at times during weekdays other than
the hours stated above, and on Saturdays, Sundays and Holidays, shall be
furnished only upon request of Tenant, and for such service Tenant shall pay
Landlord upon demand an amount equal to the rate Landlord at that time is
charging for such service.
(iii) Electric lighting service for all public areas and
special service areas of the Building in the manner and to the extent deemed by
Landlord to be standard.
(iv) Janitor service on a five (5) day week basis in a manner
considered by Landlord to be standard; PROVIDED, HOWEVER, if Tenant's floor
coverings or other improvements require special care, Tenant shall pay the
additional cleaning cost attributable thereto.
(v) Access control for the Project comparable as to coverage,
control and responsiveness (but not necessarily as to means for accomplishing
same) to other similarly situated multi-tenant office buildings in the vicinity;
provided, however, Landlord shall have no responsibility to prevent, and shall
not be liable to Tenant for, any liability or loss to Tenant, its agents,
employees and visitors arising out of losses due to theft, burglary, or damage
or injury to persons or property caused by persons gaining access to the
Premises, and Tenant hereby releases Landlord from all liability for such
losses, damages or injury.
(vi) Sufficient electrical capacity to operate (i)
incandescent lights, typewriters, calculating machines, photocopying machines
and other machines of similar low voltage electrical consumption (120/208
volts), provided that the total rated electrical design load for said lighting
and machines of low electrical voltage shall not exceed two (2.00) ▇▇▇▇▇ per
square foot of rentable area; and (ii) lighting and equipment of high voltage
electrical consumption (277/480 volts), provided that the total rated electrical
design load for said lighting and equipment of high electrical voltage shall not
exceed two (2.00) ▇▇▇▇▇ per square foot of rentable area (each such rated
electrical design load to be hereinafter referred to as the "Building Standard
rated electrical design load"). Tenant shall be allocated Tenant's pro rata
share of the Building Standard circuits provided on the floor(s) Tenant
occupies.
Should Tenant's fully connected electrical design load exceed the Building
Standard rated electrical design load for either low or high voltage electrical
consumption, or if Tenant's electrical design requires low voltage or high
voltage circuits in excess of Tenant's share of the Building Standard circuits,
Landlord will (at Tenant's expense) install one (1) additional high voltage
panel and/or one (1) additional low voltage panel with associated transformer,
space for which has been provided in the base building electrical closets based
on a maximum of two (2) such additional panels per floor for all tenants on the
floor (which additional panels and transformers shall be hereinafter referred to
as the "additional electrical equipment"). If the additional electrical
equipment is installed because Tenant's low or high voltage rated electrical
design load exceeds the applicable Building Standard rated electrical design
load, then a meter shall also be added (at Tenant's expense) to measure the
electricity used through the additional electrical equipment. For purposes
herein "Building Standard" means the quantity and quality of materials,
finishes, and workmanship from time to time specified as such by Landlord for
the Building.
The design and installation of any additional electrical equipment (or
related meter) required by Tenant shall be subject to the prior approval of
Landlord (which approval shall not be unreasonably withheld). All expenses
incurred by Landlord in connection with the review and approval of any
additional electrical equipment shall also be reimbursed to Landlord by Tenant.
Tenant shall also pay on demand the actual metered cost of electricity consumed
through the additional electrical equipment (if applicable), plus any actual
accounting expenses incurred by Landlord in connection with the metering
thereof.
If any of Tenant's electrical equipment requires conditioned air in excess
of Building Standard air conditioning, the same shall be installed by Landlord
(on Tenant's behalf), and Tenant shall pay all design, installation, metering
and operating costs relating thereto.
If Tenant requires that certain areas within the Premises must operate in
excess of the normal Building operating hours set forth above, the electrical
service to such areas shall be separately circuited and metered such that Tenant
shall be billed the costs associated with electricity consumed during hours
other than Building operating hours.
(vii) All fluorescent bulb and ballast replacement for Building
Standard lighting in all areas and all incandescent bulb replacement in public
areas, toilet and restroom areas and stairwells.
(viii) Nonexclusive operatorless passenger elevator service to
the Premises twenty-four (24) hours per day; provided, that Landlord may
reasonably limit the number of elevators in operation on weekdays after normal
business hours and on Saturdays, Sundays and Holidays.
(b) CESSATION OF SERVICES. To the extent the services described in
SECTION 4.1(a) of this Lease require electricity, gas and water supplied by
public utilities, Landlord's covenants thereunder shall only impose on Landlord
the obligation to use its best efforts to cause the applicable public utilities
to furnish the same. Failure by Landlord to furnish the services described in
this SECTION 4.1 to any extent, or any cessation thereof, shall not render
Landlord in default hereunder or liable in any respect for damages to either
person or property, or be construed as an eviction of Tenant, or work an
abatement of Rent, or relieve Tenant from fulfillment of any covenant or
agreement hereof. In addition to the foregoing, should any of the equipment or
machinery break down, cease to function properly for any cause, or be
intentionally turned off for testing or maintenance purposes, Tenant shall have
no claim for abatement or reduction of Rent or damages on account of an
interruption in service occasioned thereby or resulting therefrom; PROVIDED,
HOWEVER, Landlord agrees to use diligent efforts to repair said equipment or
machinery and to restore said services.
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(c) HOLIDAYS. The following dates shall collectively be known as
"HOLIDAYS" and individually known as a "HOLIDAY": New Year's Day; Memorial Day;
Independence Day; Labor Day; Thanksgiving Day; Friday following Thanksgiving
Day; Christmas Day; and any other holiday recognized and taken by tenants
occupying at least one-half (1/2) of the rentable area of office space of the
Building. If in the case of any Holiday, a different day shall be observed than
the respective day above described, then that day which constitutes the day
observed by national banks in the city or proximate area in which the Building
is located, on account of such Holiday, shall constitute the Holiday under this
Lease.
SECTION 4.2 KEYS AND LOCKS. Landlord shall initially furnish Tenant
with a reasonable number of keys for the standard corridor doors serving the
Premises. Additional keys will be furnished by Landlord upon an order signed by
Tenant and at Tenant's expense. All such keys shall remain the property of
Landlord. Without the prior written consent of Landlord, no additional locks
shall be allowed on any door of the Premises, and Tenant shall not make or
permit to be made any duplicate keys, except those furnished by Landlord. Upon
termination or expiration of this Lease or a termination of possession of the
Premises by Tenant, Tenant shall surrender to Landlord all keys to any locks on
doors entering or within the Premises.
SECTION 4.3 GRAPHICS AND BUILDING DIRECTORY. Landlord shall provide
and install, at Tenant's expense, all letters or numerals at the entrance to the
Premises, and a strip containing a listing of Tenant's name on the Building
directory board to be placed in the main lobby of the Building. All such letters
and numerals shall be in Building Standard graphics. Landlord shall not be
liable for any inconvenience or damage occurring as a result of any error or
omission in any directory or graphics. No signs, numerals, letters or other
graphics shall be used or installed by Tenant on the exterior of, or which may
be visible from outside, the Premises, unless approved in writing by Landlord.
ARTICLE V
SECTION 5.1 OCCUPANCY OF PREMISES. Tenant shall throughout the Term
of this Lease, at its own expense, maintain the Premises and all improvements
thereon and keep them free from waste, damage or nuisance, and shall deliver up
the Premises in a clean and sanitary condition at the expiration or termination
of this Lease or the termination of Tenant's right to occupy the Premises by
Tenant, in good repair and condition, reasonable wear and tear excepted. In the
event Tenant should neglect to maintain and/or return the Premises in such
manner, Landlord shall have the right, but not the obligation, to cause repairs
or corrections to be made, and any reasonable costs therefor shall be payable by
Tenant to Landlord within ten (10) days of demand therefor by Landlord. Upon the
expiration or termination of this Lease or the termination of Tenant's right to
occupy the Premises by Tenant, Landlord shall have the right to reenter and
resume possession of the Premises. No act or thing done by Landlord or any of
Landlord's agents (hereinafter defined) during the Term of the Lease shall be
deemed an acceptance of a surrender of the Premises, and no agreement to accept
a surrender of the Premises shall be valid unless the same be made in writing
and executed by Landlord. Tenant shall notify Landlord at least fifteen (15)
days prior to vacating the Premises and shall arrange to meet with Landlord for
a joint inspection of the Premises. If Tenant fails to give such notice or to
arrange for such inspection, then Landlord's inspection of the Premises shall be
deemed correct for the purpose of determining Tenant's responsibility for repair
and restoration of the Premises.
SECTION 5.2 ENTRY FOR REPAIRS AND INSPECTION. Tenant shall permit
Landlord and its agents to enter the Premises at all reasonable times to inspect
the same; to show the Premises to prospective tenants (within nine (9) months of
the expiration of the Term of this Lease), or interested parties such as
prospective lenders and purchasers; to exercise its rights under this Lease; to
clean, repair, alter or improve the Premises or the Building; to discharge
Tenant's obligations when Tenant has failed to do so within the time required
under this Lease or within a reasonable time after written notice from Landlord,
whichever is earlier; to post notices of nonresponsibility and similar notices
and "For Sale" signs at any time and to place "For Lease" signs upon or adjacent
to the Building or the Premises at any time within nine (9) months of the
expiration of the Term of this Lease. Tenant shall permit Landlord and its
agents to enter the Premises at any time in the event of an emergency. When
reasonably necessary, Landlord may temporarily close entrances, doors,
corridors, elevators or other facilities without liability to Tenant by reason
of such closure.
SECTION 5.3 HAZARDOUS MATERIALS.
(a) As used in this Lease, the term "Hazardous Materials" shall mean
and include any substance that is or contains petroleum, asbestos,
polychlorinated biphenyls, lead, or any other substance, material or waste which
is now or is hereafter classified or considered to be hazardous or toxic under
any federal, state or local law, rule, regulation or ordinance relating to
pollution or the protection or regulation of human health, natural resources or
the environment (collectively "ENVIRONMENTAL LAWS") or poses or threatens to
pose a hazard to the health or safety of persons on the Premises or any adjacent
property.
(b) Tenant agrees that during its use and occupancy of the Premises it
will not permit Hazardous Materials to be present on or about the Premises
except in a manner and quantity necessary for the ordinary performance of
Tenant's business and that it will comply with all Environmental Laws relating
to the use, storage or disposal of any such Hazardous Materials.
(c) If Tenant's use of Hazardous Materials on or about the Premises
results in a release, discharge or disposal of Hazardous Materials on, in, at,
under, or emanating from, the Premises or the property in which the Premises are
located, Tenant agrees to investigate, clean up, remove or remediate such
Hazardous Materials in full compliance with (a) the requirements of (i) all
Environmental Laws and (ii) any governmental agency or authority responsible for
the enforcement of any Environmental Laws; and (b) any additional requirements
of Landlord that are reasonably necessary to protect the value of the Premises
or the property in which the Premises are located. Landlord shall also have the
right, but not the obligation, to take whatever action with respect to any such
Hazardous Materials that it deems reasonably necessary to protect the value of
the Premises or the property in which the Premises are located. All costs and
expenses paid or incurred by Landlord in the exercise of such right shall be
payable by Tenant upon demand.
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(d) Upon reasonable notice to Tenant, Landlord may inspect the
Premises for the purpose of determining whether there exists on the Premises any
Hazardous Materials or other condition or activity that is in violation of the
requirements of this Lease or of any Environmental Laws. The right granted to
Landlord herein to perform inspections shall not create a duty on Landlord's
part to inspect the Premises, or liability on the part of Landlord for Tenant's
use, storage or disposal of Hazardous Materials, it being understood that Tenant
shall be solely responsible for all liability in connection therewith.
(e) Tenant shall surrender the Premises to Landlord upon the
expiration or earlier termination of this Lease free of debris, waste or
Hazardous Materials placed on or about the Premises by Tenant or its agents,
employees, contractors or invitees, and in a condition which complies with all
Environmental Laws.
(f) Tenant agrees to indemnify and hold harmless Landlord from and
against any and all claims, losses (including, without limitation, loss in value
of the Premises or the property in which the Premises are located), liabilities
and expenses (including reasonable attorney's fees) sustained by Landlord
attributable to (i) any Hazardous Materials placed on or about the Premises by
Tenant or its agents, employees, contractors or invitees or (ii) Tenant's breach
of any provision of this Section.
(g) The provisions of this Section shall survive the expiration or
earlier termination of this Lease.
ARTICLE VI.
SECTION 6.1 LEASEHOLD IMPROVEMENTS.
(a) ACCEPTANCE OF PREMISES. Tenant has made a complete inspection of
the Premises (i.e., the Suite 100 Premises, the Suite 120 Premises, the Suite
130 Premises, the Suite 140 Premises, and the Suite 400 Premises), and shall
accept the Premises and the Project in their "AS IS," "WHERE IS," and "WITH ALL
FAULTS" condition on the applicable Commencement Date without recourse to
Landlord; provided, however, that Landlord delivers the Suite 100 Premises, the
Suite 120 Premises, the Suite 130 Premises, and the Suite 140 Premises on the
applicable Commencement Date in substantially the same condition as they exist
on the date hereof, normal wear and tear and casualty excepted. Except as
expressly provided in this Lease, Landlord shall have no obligation to furnish,
equip or improve the Premises or the Project or provide an allowance, abatement
or concession with respect to the Premises, except that Landlord shall provide
the Refurbishment Allowance (as that term is defined in EXHIBIT E-1 hereto) and
the Tenant Improvement Allowance (as that term is defined in EXHIBIT E-2 hereto)
for the Premises, which shall be disbursed in accordance with EXHIBIT E-1 and
EXHIBIT E-2 attached hereto. The taking of possession of the Premises by Tenant
shall be conclusive evidence against Tenant that (i) Tenant accepts the Premises
and the Project as being suitable for its intended purpose and in a good and
satisfactory condition, (ii) acknowledges that the Premises and the Project
comply fully with Landlord's covenants and obligations under this Lease and
(iii) waives any defects in the Premises and its appurtenances and in all other
parts of the Project.
(b) IMPROVEMENTS AND ALTERATIONS. Tenant shall not make or allow to be
made (except as otherwise provided in this Lease) any improvements, alterations
or physical additions (including fixtures) in or to the Premises or the Project,
without first obtaining the written consent of Landlord, including Landlord's
written approval of Tenant's contractor(s) and of the plans, working drawings
and specifications relating thereto, which consent shall not be unreasonably
withheld, conditioned or delayed, so long as such improvements, alterations or
physical additions do not affect the Building's structure or the mechanical,
electrical or plumbing components of the Building. If Landlord does not respond
in writing with reasonable specificity to Tenant's request for approval of plans
and specifications within ten (10) business days after submission of Tenant's
plans, Landlord's approval therefor shall be deemed granted. Approval by
Landlord of any of Tenant's drawings and plans and specifications prepared in
connection with any alterations, improvements, modifications or additions to the
Premises or the Project shall not constitute a representation or warranty of
Landlord as to the adequacy or sufficiency of such drawings, plans and
specifications, or alterations, improvements, modifications or additions to
which they relate, for any use, purpose or conditions, but such approval shall
merely be the consent of Landlord as required hereunder. Any and all furnishing,
equipping and improving of or other alteration and addition to the Premises
shall be: (i) made at Tenant's sole cost, risk and expense, and Tenant shall pay
for Landlord's actual out-of-pocket third-party costs incurred in connection
with and as a result of such alterations or additions; (ii) performed in a
prompt, good and workmanlike manner with labor and materials of such quality as
Landlord may reasonably require; (iii) constructed substantially in accordance
with all plans and specifications approved in writing by Landlord prior to the
commencement of any such work; (iv) prosecuted diligently and continuously to
completion so as to minimize interference with the normal business operations of
other tenants in the Building, the performance of Landlord's obligations under
this Lease or any mortgage or ground lease covering or affecting all or any part
of the Building or the Land and any work being done by contractors engaged by
Landlord with respect to or in connection with the Building; and (v) performed
by contractors approved in writing by Landlord. Tenant shall have no (and hereby
waives all) rights to payment or compensation for any such item. Tenant shall
notify Landlord upon completion of such alterations, improvements, modifications
or additions and Landlord shall inspect same for workmanship and compliance with
the approved plans and specifications. Tenant and its contractors shall comply
with all reasonable requirements Landlord may impose on Tenant or its
contractors with respect to such work (including but not limited to, insurance,
indemnity and bonding requirements), and, to the extent any changes or change
orders have been made to or in connection with the plans and specifications
which were approved by Landlord, (A) such changes or change orders shall be
subject to Landlord's prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed, and (B) Tenant shall deliver to
Landlord a complete copy of the "as-built" or final plans and specifications for
all alterations or physical additions so made in or to the Premises within
thirty (30) days of completing the work. Tenant shall not place safes, vaults,
filing cabinets or systems, libraries or other heavy furniture or equipment
within the Premises without Landlord's prior written consent.
(c) TITLE TO ALTERATIONS. All alterations, physical additions,
modifications or improvements in or to the Premises (including fixtures) shall,
when made, become the property of Landlord and shall be surrendered to Landlord
upon termination or expiration of this Lease or termination of Tenant's right to
occupy the Premises, whether by lapse of
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time or otherwise, without any payment, reimbursement or compensation therefor;
PROVIDED, HOWEVER, that Tenant shall retain title to and shall remove from the
Premises movable equipment or furniture owned by Tenant and Tenant repairs any
damage caused thereby and Tenant returns the Premises to their preexisting
condition. Notwithstanding any of the foregoing to the contrary, Landlord may
require Tenant to remove all alterations, additions or improvements to the
Premises that are other than Building Standard including, without limitation,
any cabling or other computer, satellite or telecommunications equipment or
hardware, whether or not such alterations, additions, or improvements are
located in the Premises upon the expiration or earlier termination of this Lease
or the termination of Tenant's right to possession of the Premises and restore
the same to Building Standard condition, reasonable wear and tear excepted. The
rights conferred to Landlord under this SECTION 6.1(c) shall be in addition to
(and not in conflict with) any other rights conferred on Landlord by this Lease,
in equity or at law.
(d) PERSONAL PROPERTY TAXES; SALES, USE AND EXCISE TAXES. Tenant shall
be responsible for and shall pay ad valorem taxes and other taxes, assessments
or charges levied upon or applicable to Tenant's personal property, the value of
Tenant's leasehold improvements in the Premises in excess of Building Standard
(and if the taxing authorities do not separately assess Tenant's leasehold
improvements, Landlord may make a reasonable allocation of the taxes assessed on
the Project to give effect to this SECTION 6.1(d)) and all license fees and
other fees or charges imposed on the business conducted by Tenant on the
Premises before such taxes, assessments, charges or fees become delinquent.
Tenant shall also pay to Landlord with all Rent due and owing under this Lease
an amount equal to any sales, rental, excise and use taxes levied, imposed or
assessed by the State or any political subdivision thereof or other taxing
authority upon any amounts classified as rent.
SECTION 6.2 REPAIRS BY LANDLORD. All repairs, alterations or
additions that affect the Project's structural components or major mechanical,
electrical or plumbing systems shall be made by Landlord or its contractors
only, and, in the case of any damage to such components or systems caused by
Tenant or Tenant's agents, shall be paid for by Tenant in an amount equal to
Landlord's costs plus fifteen percent (15%) as an overhead expense. Unless
otherwise provided herein, Landlord shall not be required to make any
improvements to or repairs of any kind or character to the leasehold
improvements located in the Premises during the Term, except such repairs as
Landlord deems necessary for normal maintenance operations of the Building.
SECTION 6.3 REPAIRS BY TENANT. Subject to SECTION 6.2 of this Lease,
Tenant shall be responsible, at its own cost and expense, for all repair or
replacement of any damage to the leasehold improvements in the Premises,
together with any damage to the Project or any part thereof caused by Tenant or
any of Tenant's agents. Except insofar as Landlord is expressly obligated under
this Lease to maintain and repair the Building, in addition to the maintenance
and repair obligations of Tenant otherwise expressly set forth in this Lease,
Tenant is also obligated to perform, at Tenant's own cost and expense and risk,
all other maintenance and repairs necessary or appropriate to cause the Premises
to be maintained in good condition and suitable for Tenant's intended commercial
purpose.
SECTION 6.4 LIENS. Tenant shall keep the Premises and the Building
free from any liens, including but not limited to liens filed against the
Premises by any governmental agency, authority or organization, arising out of
any work performed, materials ordered or obligations incurred by or on behalf of
Tenant, and Tenant hereby agrees to indemnify and hold Landlord, its agents,
employees, independent contractors, officers, directors, partners, and
shareholders harmless from any liability, cost or expense for such liens. Tenant
shall cause any such lien imposed to be released of record by payment or posting
of the proper bond within thirty (30) days after the earlier of imposition of
the lien or written request by Landlord. Tenant shall give Landlord written
notice of Tenant's intention to perform work on the Premises which might result
in any claim of lien, at least ten (10) days prior to the commencement of such
work to enable Landlord to post and record a notice of nonresponsibility or
other notice deemed proper before commencement of any such work. Tenant's notice
of intent to perform work may be given contemporaneously with Tenant's submittal
of plans for Landlord's approval. If Tenant fails to remove any lien within the
prescribed thirty (30) day period, then Landlord may do so at Tenant's expense
and Tenant's reimbursement to Landlord for such amount, including attorneys'
fees and costs, shall be deemed Additional Rent. Tenant shall have no power to
do any act or make any contract which may create or be the foundation for any
lien, mortgage or other encumbrance upon the reversion or other estate of
Landlord, or of any interest of Landlord in the Premises.
SECTION 6.5 INDEMNIFICATION. Tenant shall defend, indemnify and hold
harmless Landlord, its agents, employees, officers, directors, partners and
shareholders ("LANDLORD'S RELATED PARTIES") from and against any and all
liabilities, judgments, demands, causes of action, claims, losses, damages,
costs and expenses, including reasonable attorneys' fees and costs, arising out
of the use, occupancy, conduct, operation, or management of the Premises by, or
the willful misconduct or negligence of, Tenant, its officers, contractors,
licensees, agents, servants, employees, guests, invitees, or visitors in or
about the Building or Premises or arising from any breach or default under this
Lease by Tenant, or arising from any accident, injury, or damage, howsoever and
by whomsoever caused, to any person or property, occurring in or about the
Building or Premises. This indemnification shall survive termination or
expiration of this Lease. This provision shall not be construed to make Tenant
responsible for loss, damage, liability or expense resulting from injuries to
third parties caused by the sole negligence or willful misconduct of Landlord,
or its officers, contractors, licensees, agents, employees, or invitees.
ARTICLE VII.
SECTION 7.1 CONDEMNATION.
(a) TOTAL TAKING. In the event of a taking or damage related to the
exercise of the power of eminent domain, by any agency, authority, public
utility, person, corporation or entity empowered to condemn property (including
without limitation a voluntary conveyance by Landlord in lieu of such taking or
condemnation) (individually, a "TAKING") of (i) the entire Premises, (ii) so
much of the Premises as to prevent or substantially impair its use by Tenant
during the Term of this Lease or (iii) portions of the Building or Project
required for reasonable access to, or reasonable use of, the Premises
(individually, a "TOTAL TAKING"), the rights of Tenant under this Lease and the
leasehold estate of Tenant in and to the Premises shall cease and terminate as
of the date upon which title to the property taken passes to and vests in the
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condemnor or the effective date of any order for possession if issued prior to
the date title vests in the condemnor ("DATE OF TAKING").
(b) PARTIAL TAKING. In the event of a Taking of only a part of the
Premises or of a part of the Project which does not constitute a Total Taking
during the Term of this Lease (individually, a "PARTIAL TAKING"), the rights of
Tenant under this Lease and the leasehold estate of Tenant in and to the portion
of the property taken shall cease and terminate as of the Date of Taking, and an
adjustment to the Rent shall be made based upon the reduced area of the
Premises.
(c) TERMINATION BY LANDLORD. In the event of a Taking of the Building
(other than the Premises) such that, in Landlord's reasonable opinion, the
Building cannot be restored in a manner that makes its continued operation
practically or economically feasible, Landlord may terminate this Lease by
giving notice to Tenant within ninety (90) days after the date notice of such
Taking is received by Landlord.
(d) RENT ADJUSTMENT. If this Lease is terminated pursuant to this
SECTION 7.1, Landlord shall refund to Tenant any prepaid unaccrued Rent and any
other sums due and owing to Tenant (less any sums then due and owing Landlord by
Tenant), and Tenant shall pay to Landlord any remaining sums due and owing
Landlord under this Lease, each prorated as of the Date of Taking where
applicable.
(e) REPAIR. If this Lease is not terminated as provided for in this
SECTION 7.1, then Landlord at its expense shall promptly repair and restore the
Building, Project and/or the Premises to approximately the same condition that
existed at the time Tenant entered into possession of the Premises, wear and
tear excepted (and Landlord shall have no obligation to repair or restore
Tenant's improvements to the Premises or Tenant's Property), except for the part
taken, so as to render the Building or Project as complete an architectural unit
as practical, but only to the extent of the condemnation award received by
Landlord for the damage.
(f) AWARDS AND DAMAGES. Landlord reserves all rights to damages and
awards paid because of any Partial or Total Taking of the Premises or the
Project. Tenant assigns to Landlord any right Tenant may have to the damages or
award. Further, Tenant shall not make claims against Landlord or the condemning
authority for damages. Notwithstanding, Tenant may claim and recover from the
condemning authority a separate award for Tenant's moving expenses, business
dislocation damages, Tenant's Property and any other award that would not reduce
the award payable to Landlord.
SECTION 7.2 FORCE MAJEURE. Neither Landlord nor Tenant shall be
required to perform any term, provision, agreement, condition or covenant in
this Lease (other than the obligations of Tenant to pay Rent as provided herein)
so long as such performance is delayed or prevented by "FORCE MAJEURE", which
shall mean acts of God, strikes, injunctions, lockouts, material or labor
restrictions by any governmental authority, civil riots, floods, fire, theft,
public enemy, insurrection, war, court order, requisition or order of
governmental body or authority, and any other cause not reasonably within the
control of Landlord or Tenant and which by the exercise of due diligence
Landlord or Tenant is unable, wholly or in part, to prevent or overcome. Neither
Landlord nor any mortgagee shall be liable or responsible to Tenant for any loss
or damage to any property or person occasioned by any Force Majeure, or for any
damage or inconvenience which may arise through repair or alteration of any part
of the Project as a result of any Force Majeure.
SECTION 7.3 FIRE OR OTHER CASUALTY DAMAGE. If any portion of the
Premises shall be destroyed or damaged by fire or any other casualty, Tenant
shall immediately give notice thereof to Landlord. If any portion of the
Premises or Project shall be destroyed or damaged by fire or any other casualty
then, at the option of Landlord, Landlord may restore and repair the portion of
the Premises or Project damaged and, if the Premises are rendered untenantable
in whole or in part by reason of such casualty as determined by Landlord in its
commercially reasonable judgment, Tenant shall be entitled to an equitable
abatement of the Rent hereunder (subject to the limitation in SECTION 7.3(b)
below) until such time as the damaged portion of the Premises (exclusive of any
of Tenant's Property or Tenant's improvements) are repaired or restored by
Landlord to the extent required hereby or Landlord may terminate this Lease
whereupon all Rent accrued up to the time of such damage or destruction and any
other sums due and owing shall be paid by Tenant to Landlord (less any sums then
due and owing Tenant by Landlord) and any remaining sums due and owing by
Landlord to Tenant shall be paid to Tenant. In no event shall Landlord have any
obligation to repair or restore any such destruction or damage.
(a) REPAIR. Landlord shall give Tenant written notice of its
decisions, estimates or elections under this SECTION 7.3 within sixty (60) days
after any such damage or destruction. If Landlord has elected to repair and
restore the Premises or other portion of the Project, this Lease shall continue
in full force and effect, and the repairs will be made within a reasonable time
thereafter (not to exceed one (1) year), subject to the provisions of SECTION
7.2 of this Lease. Should the repairs not be completed within that period,
Tenant shall have the option of terminating this Lease by written letter of
termination. If this Lease is terminated as herein permitted, Landlord shall
refund to Tenant any prepaid Rent (unaccrued as of the date of damage or
destruction) and any other sums due and owing by Landlord to Tenant (less any
sums then due and owing Landlord by Tenant) and any remaining sums due and owing
by Tenant to Landlord shall be paid to Landlord. If Landlord has elected to
repair and reconstruct the Premises or other portion of the Project to the
extent stated above, the Term will be extended for a time equal to the period
from the occurrence of such damage to the completion of such repair and
reconstruction. If Landlord elects to rebuild the Premises or other portion of
the Project, Landlord shall be obligated to restore or rebuild the Premises or
other portion of the Project to substantially the same condition as existed at
the time Tenant entered into possession of the Premises (except for any work
paid for by Tenant), wear and tear excepted and not be required to rebuild,
repair or replace any part of Tenant's Property or Tenant's leasehold
improvements. Notwithstanding anything contained in this Lease to the contrary,
if Landlord shall elect to repair and restore the Premises or other portion of
the Project pursuant to this SECTION 7.3, in no event shall Landlord be required
to expend under this ARTICLE VII any amount in excess of the proceeds actually
received from the insurance carried by Landlord pursuant to SECTION 7.4(a) of
this Lease. Landlord shall not be liable for any inconvenience or annoyance to
Tenant or injury to the business of Tenant resulting in any way from such damage
or destruction or the disregard of the repair thereof.
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(b) NEGLIGENCE OF TENANT. Notwithstanding the provisions of SECTION
7.3(a) of this Lease, if the Premises, the Project or any portion thereof, are
damaged by fire or other casualty resulting from the fault or negligence of
Tenant or any of Tenant's agents, the Rent under this Lease will not be abated
during the repair of that damage, and Tenant will be liable to Landlord for the
cost and expense of the repair and restoration of the Premises, the Project or
any part thereof, caused thereby to the extent that cost and expense is not
covered by insurance proceeds (including without limitation the amount of any
insurance deductible).
SECTION 7.4 INSURANCE.
(a) Landlord shall maintain, or cause to be maintained, standard fire
and extended coverage insurance on the Buildings and Building Standard tenant
improvements (excluding leasehold improvements by Tenant in excess of Building
Standard and Tenant's Property) on a full replacement cost basis. The insurance
required to be obtained by Landlord may be obtained by Landlord through blanket
or master policies insuring other entities or properties owned or controlled by
Landlord.
(b) Tenant shall, at its sole cost and expense, procure and maintain
during the Term of this Lease all such policies of insurance as Landlord may
reasonably require, including without limitation commercial general liability
insurance (including personal injury liability, premises/operation, property
damage, independent contractors and broad form contractual coverage in support
of the indemnifications of Landlord by Tenant under this Lease) in amounts of
not less than a combined single limit of $1,000,000; comprehensive automobile
liability insurance; business interruption insurance; contractual liability
insurance; property insurance with respect to Tenant's Property, and all
leasehold improvements, alterations and additions in excess of Building
Standard, to be written on an "all risk" basis for full replacement cost;
worker's compensation and employer's liability insurance; and comprehensive
catastrophe liability insurance; all maintained with companies, on forms and in
such amounts as Landlord may, from time to time, reasonably require and endorsed
to include Landlord as an additional insured, with the premiums fully paid on or
before the due dates. The insurer must be licensed to do business in the state
in which the Building is located. Tenant, and not Landlord, will be liable for
any costs or damages in excess of the statutory limit for which Tenant would, in
the absence of worker's compensation, be liable. In the event that Tenant fails
to take out or maintain any policy required by this SECTION 7.4 to be maintained
by Tenant, such failure shall be a defense to any claim asserted by Tenant
against Landlord by reason of any loss sustained by Tenant that would have been
covered by such policy, notwithstanding that such loss may have been proximately
caused solely or partially by the negligence or willful misconduct of Landlord
or any of Landlord's Related Parties. If Tenant does not procure insurance as
required, Landlord may, upon advance written notice to Tenant, cause this
insurance to be issued and Tenant shall pay to Landlord the premium for such
insurance within ten (10) days of Landlord's demand, plus interest at the past
due rate provided for in SECTION 3.1(c) of this Lease until repaid by Tenant.
All policies of insurance required to be maintained by Tenant shall specifically
make reference to the indemnifications by Tenant in favor of Landlord under this
Lease and shall provide that Landlord shall be given at least thirty (30) days'
prior written notice of any cancellation or nonrenewal of any such policy. A
certificate evidencing each such policy shall be deposited with Landlord by
Tenant on or before the Commencement Date, and a replacement certificate
evidencing each subsequent policy shall be deposited with Landlord at least ten
(10) days prior to the expiration of the preceding such policy. All insurance
policies obtained by Tenant shall be written as primary policies (primary over
any insurance carried by Landlord), not contributing with and not in excess of
coverage which Landlord may carry, if any. The insurance required by this Lease,
at the option of Tenant, may be effected by blanket and/or umbrella policies
issued to Tenant covering the Premises and other properties owned or leased by
Tenant, provided that the policies otherwise comply with the provisions of this
Lease and allocate to the Premises the specified coverage, without possibility
of reduction or coinsurance by reason of, or damage to, any other premises named
therein, and if the insurance required by this Lease shall be effected by any
such blanket or umbrella policies, Tenant shall furnish to Landlord or lender or
mortgagee, if any, certified copies or duplicate originals of such policies in
place of the originals, with schedules hereto attached showing the amount of
insurance afforded by such policies applicable to the Premises.
SECTION 7.5 WAIVER OF SUBROGATION RIGHTS. Each party hereto waives
all rights of recovery, claims, actions or causes of actions arising in any
manner in its (the "INJURED PARTY'S") favor and against the other party for loss
or damage to the Injured Party's property located within or constituting a part
or all of the Project, to the extent the loss or damage: (a) is covered by the
Injured Party's insurance; or (b) would have been covered by the insurance the
Injured Party is required to carry under this Lease, whichever is greater,
regardless of the cause or origin, including the sole, contributory, partial,
joint, comparative or concurrent negligence of the other party. This waiver also
applies to each party's directors, officers, employees, shareholders, partners,
representatives and agents. All insurance carried by either Landlord or Tenant
covering the losses and damages described in this SECTION 7.5 shall provide for
such waiver of rights of subrogation by the Injured Party's insurance carrier to
the maximum extent that the same is permitted under the laws and regulations
governing the writing of insurance within the state in which the Building is
located. Both parties hereto are obligated to obtain such a waiver and provide
evidence to the other party of such waiver. The waiver set forth in this SECTION
7.5 shall be in addition to, and not in substitution for, any other waivers,
indemnities or exclusions of liability set forth in this Lease.
ARTICLE VIII.
SECTION 8.1 DEFAULT BY TENANT. The occurrence of any one or more of
the following events shall constitute a default by Tenant under this Lease:
(a) Tenant shall fail to pay to Landlord any Rent or any other
monetary charge due from Tenant hereunder on or before ten (10) days after
written notice thereof from Landlord to Tenant, provided that Landlord shall not
be required to provide such notice more than twice during any twelve month
period with respect to nonpayment of Rent, the third such nonpayment
constituting a default without the requirement of notice;
(b) Tenant breaches or fails to comply with any term, provisions,
conditions or covenant of this Lease, other than as described in Section 8.1(a),
or with any of the Building rules and regulations now or hereafter established
to govern the operation of the Project;
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(c) A Transfer (hereinafter defined) shall occur, without the prior
written approval of Landlord;
(d) The interest of Tenant under this Lease shall be levied on under
execution or other legal process;
(e) Any petition in bankruptcy or other insolvency proceedings shall
be filed by or against Tenant, or any petition shall be filed or other action
taken to declare Tenant a bankrupt or to delay, reduce or modify Tenant's debts
or obligations or to reorganize or modify Tenant's capital structure or
indebtedness or to appoint a trustee, receiver or liquidator of Tenant or of any
property of Tenant, or any proceeding or other action shall be commenced or
taken by any governmental authority for the dissolution or liquidation of Tenant
and, within thirty (30) days hereafter, Tenant fails to secure a discharge
thereof;
(f) Tenant shall become insolvent, or Tenant shall make an assignment
for the benefit of creditors, or Tenant shall make a transfer in fraud of
creditors, or a receiver or trustee shall be appointed for Tenant or any of its
properties;
(g) Tenant shall abandon the Premises or any substantial portion
thereof;
(h) Tenant shall do or permit to be done anything which creates a lien
upon the Premises or the Project which is not released or secured as provided in
Section 6.4; or
(i) So long as the Project and One Paragon Centre are under common
ownership, any default by Tenant under that certain Amended and Restated Lease
for premises at One Paragon Centre dated of even date herewith, by and between
Landlord and Tenant, (the "One Paragon Centre Lease"), beyond the expiration of
any applicable notice and cure periods thereunder shall constitute an immediate
default under this Lease.
SECTION 8.2 LANDLORD'S REMEDIES. Upon occurrence of any default by
Tenant under this Lease and (i) if the event of default described in Section
8.1(a) is not cured within ten (10) days after written notice from Landlord of
such default (provided, however, Landlord shall not be obligated to notify
Tenant more than twice in any 12-month period; thereafter, Tenant shall
immediately be in default upon Tenant's failure to pay Rent as and when due); or
(ii) the events described in Sections 8.1(b), (d), (f) and (g) are not cured
within thirty (30) days after written notice from Landlord of such default
(there being no notice and cure period for events of defaults described in
Sections 8.1(c), (e) and (h) except as otherwise set forth herein), the Landlord
shall have the option to do and perform any one or more of the following in
addition to, and not in limitation of, any other remedy or right permitted it by
law or in equity or by this Lease:
(a) Continue this Lease in full force and effect, and this Lease shall
continue in full force and effect as long as Landlord does not terminate this
Lease, and Landlord shall have the right to collect Rent, Additional Rent and
other charges when due.
(b) Terminate this Lease, and Landlord may forthwith repossess the
Premises and be entitled to recover as damages a sum of money equal to the total
of (i) the cost of recovering the Premises, (ii) the cost of removing and
storing Tenant's or any other occupant's property, (iii) the unpaid Rent and any
other sums accrued hereunder at the date of termination, (iv) a sum equal to the
amount, if any, by which the present value of the total Rent and other benefits
which would have accrued to Landlord under this Lease for the remainder of the
Term, if the terms of this Lease had been fully complied with by Tenant,
discounted at five percent (5%) per annum exceeds the total fair market value of
the Premises for the balance of the Term (it being the agreement of the parties
hereto that Landlord shall receive the benefit of its bargain), (v) the cost of
reletting the Premises including, without limitation, the cost of restoring the
Premises to the condition necessary to rent the Premises at the prevailing
market rental rate, normal wear and tear excepted, (vi) any increase in
insurance premiums caused by the vacancy of the Premises, (vii) the amount of
any unamortized improvements to the Premises paid for by Landlord, (viii) the
cost of any increase in insurance premiums caused by the termination of
possession of the Premises, (ix) the amount of any unamortized brokerage
commission or other costs paid by Landlord in connection with the leasing of the
Premises and (ix) any other sum of money or damages owed by Tenant to Landlord.
In the event Landlord shall elect to terminate this Lease, Landlord shall at
once have all the rights of reentry upon the Premises, without becoming liable
for damages, or guilty of trespass.
(c) Terminate Tenant's right of occupancy of the Premises and reenter
and repossess the Premises by entry, forcible entry or detainer suit or
otherwise, without demand or notice of any kind to Tenant and without
terminating this Lease, without acceptance of surrender of possession of the
Premises, and without becoming liable for damages or guilty of trespass, in
which event Landlord may, but shall be under no obligation to, relet the
Premises or any part thereof for the account of Tenant (nor shall Landlord be
under any obligation to relet the Premises before Landlord relets or leases any
other portion of the Project or any other property under the ownership or
control of Landlord) for a period equal to or lesser or greater than the
remainder of the Term of the Lease on whatever terms and conditions Landlord, at
Landlord's sole discretion, deems advisable. Tenant shall be liable for and
shall pay to Landlord all Rent payable by Tenant under this Lease (plus interest
at the past due rate provided in SECTION 3.1(c) of this Lease if in arrears)
plus an amount equal to (i) the cost of recovering possession of the Premises,
(ii) the cost of removing and storing any of Tenant's or any other occupant's
property left on the Premises or the Project after reentry, (iii) the cost of
decorations, repairs, changes, alterations and additions to the Premises and the
Project, (iv) the cost of any attempted reletting or reletting and the
collection of the rent accruing from such reletting, (v) the cost of any
brokerage fees or commissions payable by Landlord in connection with any
reletting or attempted reletting, (vi) any other costs incurred by Landlord in
connection with any such reletting or attempted reletting, (vii) the cost of any
increase in insurance premiums caused by the termination of possession of the
Premises, (viii) the amount of any unamortized improvements to the Premises paid
for by Landlord, (ix) the amount of any unamortized brokerage commissions or
other costs paid by Landlord in connection with the leasing of the Premises and
(x) any other sum of money or damages owed by Tenant to Landlord at law, in
equity or hereunder, all reduced by any sums received by Landlord through any
reletting of the Premises; PROVIDED, HOWEVER, that in no event shall Tenant be
entitled to any excess of any sums obtained by reletting over and above Rent
provided in this Lease to be paid by Tenant to Landlord. For the purpose of such
reletting Landlord is authorized to decorate or to make any repairs, changes,
alterations or additions in or to the Premises that may be necessary. Landlord
may file suit to recover any sums
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falling due under the terms of this SECTION 8.2(c) from time to time, and no
delivery to or recovery by Landlord of any portion due Landlord hereunder shall
be any defense in any action to recover any amount not theretofore reduced to
judgment in favor of Landlord. No reletting shall be construed as an election on
the part of Landlord to terminate this Lease unless a written notice of such
intention is given to Tenant by Landlord. Notwithstanding any such reletting
without termination, Landlord may at any time thereafter elect to terminate this
Lease for such previous default and/or exercise its rights under SECTION 8.3(b)
of this Lease.
(d) Enter upon the Premises and do whatever Tenant is obligated to do
under the terms on this Lease; and Tenant agrees to reimburse Landlord on demand
for any reasonable expenses which Landlord may incur in effecting compliance
with Tenant's obligations under this Lease plus fifteen percent (15%) of such
cost to cover overhead plus interest at the past due rate provided in this
Lease, and Tenant further agrees that Landlord shall not be liable for any
damages resulting to Tenant from such action. No action taken by Landlord under
this SECTION 8.2(d) shall relieve Tenant from any of its obligations under this
Lease or from any consequences or liabilities arising from the failure to
perform such obligations.
(e) Without waiving such default, apply all or any part of the
Security Deposit and/or Prepaid Rent, if any, to cure the default or to any
damages suffered as a result of the default to the extent of the amount of
damages suffered. Tenant shall reimburse Landlord for the amount of such
depletion of the Security Deposit and/or any Prepaid Rent on demand.
(f) Change all door locks and other security devices of Tenant at the
Premises and/or the Project, and Landlord shall not be required to provide the
new key to the Tenant except during Tenant's regular business hours, and only
upon the condition that Tenant has cured any and all defaults hereunder and in
the case where Tenant owes Rent to the Landlord, reimbursed Landlord for all
Rent and other sums due Landlord hereunder. Landlord, on terms and conditions
satisfactory to Landlord in its sole discretion, may upon request from Tenant's
employees, enter the Premises for the purpose of retrieving therefrom personal
property of such employees, provided, Landlord shall have no obligation to do
so.
(g) Exercise any and all other remedies available to Landlord in this
Lease, at law or in equity.
SECTION 8.3 DUTY TO RELET OR MITIGATE. Notwithstanding anything
contained herein to the contrary, Tenant and Landlord agree that Landlord shall
use commercially reasonable efforts to relet the Premises or otherwise mitigate
damages under this Lease. However, Tenant agrees that Landlord shall not be
liable, nor shall Tenant's obligations hereunder be diminished, because of
Landlord's failure to relet the Premises after using commercially reasonable
efforts, or Landlord's failure to collect rent due with respect to such
reletting. Landlord and Tenant agree that any such duty to mitigate shall be
satisfied and Landlord shall be deemed to have used commercially reasonable
efforts to fill the Premises by doing the following: (a) posting a "For Lease"
sign on the Premises; (b) advising Landlord's leasing agent of the availability
of the Premises; and (c) advising at least one outside commercial brokerage
entity of the availability of the Premises; PROVIDED, HOWEVER, that Landlord
shall not be obligated to relet the Premises before leasing any other unoccupied
portions of the Project and any other property under the ownership or control of
Landlord. If Landlord receives any payments from the reletting of the Premises,
any such payment shall first be applied to any costs or expenses incurred by
Landlord as a result of Tenant's Default under this Lease.
SECTION 8.4 REENTRY. If Tenant fails to allow Landlord to reenter and
repossess the Premises, Landlord shall have full and free license to enter into
and upon the Premises with process of law for the purpose of repossessing the
Premises, expelling or removing Tenant and any others who may be occupying or
otherwise within the Premises, removing any and all property therefrom and
changing all door locks of the Premises. Landlord may take these actions without
being deemed in any manner guilty of trespass, eviction or forcible entry or
detainer, without accepting surrender of possession of the Premises by Tenant,
and without incurring any liability for any damage resulting therefrom,
including without limitation any liability arising under applicable state law
and without relinquishing Landlord's right to Rent or any other right given to
Landlord hereunder or by operation of law or in equity, Tenant hereby waiving
any right to claim damage for such reentry and expulsion, including without
limitation any rights granted to Tenant by applicable state law, unless such
damage is due to the gross negligence or willful misconduct of Landlord.
SECTION 8.5 RIGHTS OF LANDLORD IN BANKRUPTCY. Nothing contained in
this Lease shall limit or prejudice the right of Landlord to prove for and
obtain in proceedings for bankruptcy or insolvency, by reason of the expiration
or termination of this Lease or the termination of Tenant's right of occupancy,
an amount equal to the maximum allowed by any statute or rule of law in effect
at the time when, and governing the proceedings in which, the damages are to be
proved, whether or not the amount be greater, equal to, or less than the amount
of the loss or damages referred to in this SECTION 8.5. In the event that under
applicable law, the trustee in bankruptcy or Tenant has the right to affirm this
Lease and continue to perform the obligations of Tenant hereunder, such trustee
or Tenant shall, in such time period as may be permitted by the bankruptcy court
having jurisdiction, cure all defaults of Tenant hereunder outstanding as of the
date of the affirmance of this Lease and provide to Landlord such adequate
assurances as may be necessary to ensure Landlord of the continued performance
of Tenant's obligations under this Lease.
SECTION 8.6 WAIVER OF CERTAIN RIGHTS. Tenant hereby expressly waives
any and all rights Tenant may have under applicable state law to its right to
recover possession of the Premises. Tenant hereby waives any and all liens
(whether statutory, contractual or constitutional) it may have or acquire as a
result of a breach by Landlord under this Lease. Tenant also waives and releases
any statutory lien and offset rights it may have against Landlord, including
without limitation the rights conferred upon applicable state law.
SECTION 8.7 NONWAIVER. Failure on the part of Landlord to complain of
any action or nonaction on the part of Tenant, no matter how long the same may
continue, shall not be deemed to be a waiver by Landlord of any of its rights
under this Lease. Further, it is covenanted and agreed that no waiver at any
time of any of the provisions hereof by Landlord shall be construed as a waiver
of any of the other provisions hereof and that a waiver at any time of any of
the provisions hereof shall not be construed as a waiver at any subsequent time
of the same provisions. The consent or
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approval by Landlord to or of any action by Tenant requiring Landlord's
consent or approval shall not be deemed to waive or render unnecessary
Landlord's consent or approval to or of any subsequent similar act by Tenant.
SECTION 8.8 HOLDING OVER. In the event Tenant remains in possession
of the Premises after the expiration or termination of this Lease without the
execution of a new lease, then Tenant, at Landlord's option, shall be deemed to
be occupying the Premises as a tenant at will at a base rental equal to one
hundred fifty percent (150%) of the then applicable Base Rent, and shall
otherwise remain subject to all the conditions, provisions and obligations of
this Lease insofar as the same are applicable to a tenancy at will, including
without limitation the payment of all other Rent; PROVIDED, HOWEVER, nothing
contained herein shall require Landlord to give Tenant more than thirty (30)
days prior written consent to terminate Tenant's tenancy-at-will. No holding
over by Tenant after the expiration or termination of this Lease shall be
construed to extend or renew the Term or in any other manner be construed as
permission by Landlord to hold over. Tenant shall indemnify Landlord (y) against
all claims for damages by any other tenant to whom Landlord may have leased all
or any part of the Premises effective upon the termination or expiration of this
Lease, and (z) for all other losses, costs and expenses, including reasonable
attorneys' fees, incurred by reason of such holding over.
SECTION 8.9 ABANDONMENT OF PERSONAL PROPERTY. Any personal property
left in the Premises or any personal property of Tenant left about the Project
at the expiration or termination of this Lease, the termination of Tenant's
right to occupy the Premises or the abandonment, desertion or vacating of the
Premises by Tenant, shall be deemed abandoned by Tenant and may, at the option
of Landlord, be immediately removed from the Premises or such other space by
Landlord and stored by Landlord at the full risk, cost and expense of Tenant.
Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. In the event Tenant does not reclaim any such personal
property and pay all costs for any storage and moving thereof within thirty (30)
days after the expiration or termination of this Lease, the termination of
Tenant's right to occupy the Premises or the abandonment, desertion or vacating
of the Premises by Tenant, Landlord may dispose of such personal property in any
way that it deems proper. If Landlord shall sell any such personal property, it
shall be entitled to retain from the proceeds the amount of any Rent or other
expenses due Landlord, together with the cost of storage and moving and the
expense of the sale. Notwithstanding anything contained herein to the contrary,
in addition to the rights provided herein with respect to any such property,
Landlord shall have the option of exercising any of its other rights or remedies
provided in the Lease or exercising any rights or remedies available to Landlord
at law or in equity.
ARTICLE IX.
SECTION 9.1 TRANSFERS. Tenant shall not, by operation of law or
otherwise, (a) assign, transfer, mortgage, pledge, hypothecate or otherwise
encumber this Lease, the Premises or any part of or interest in this Lease or
the Premises, (b) grant any concession or license within the Premises, (c)
sublet all or any part of the Premises or any right or privilege appurtenant to
the Premises, or (d) permit any other party to occupy or use all or any part of
the Premises (collectively, a "TRANSFER"), without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed. This prohibition against a Transfer includes, without limitation, (i)
any subletting or assignment which would otherwise occur by operation of law,
merger, consolidation, reorganization, transfer or other change of Tenant's
corporate or proprietary structure; (ii) an assignment or subletting to or by a
receiver or trustee in any federal or state bankruptcy, insolvency, or other
proceedings; (iii) the sale, assignment or transfer of all or substantially all
of the assets of Tenant, with or without specific assignment of Lease; (iv) the
change in control in a partnership; or (v) conversion of Tenant to a limited
liability entity. If Tenant converts to a limited liability entity without
obtaining the prior written consent of Landlord: (i) the conversion shall be
null and void for purposes of the Lease, including the determination of all
obligations and liabilities of Tenant and its partners to Landlord; (ii) all
partners of Tenant immediately prior to its conversion to a limited liability
shall be fully liable, jointly and severally, for obligations of Tenant accruing
under this Lease pre-conversion and post-conversion, and all members and other
equity holders in Tenant post-conversion shall be fully liable for all
obligations and liabilities of Tenant accruing under the Lease after the date
such members and other equity holders are admitted to the limited liability
entity as if such person or entity had become a general partner in a
partnership; and (iii) Landlord shall have the option of declaring Tenant in
default under this Lease. If Tenant requests Landlord's consent to any Transfer,
then Tenant shall provide Landlord with a written description of all terms and
conditions of the proposed Transfer, copies of the proposed documentation, and
the following information about the proposed transferee: name and address;
reasonably satisfactory information about its business and business history; its
proposed use of the Premises; a copy of the proposed sublease or assignment
agreement; banking, financial and other credit information; and general
references sufficient to enable Landlord to determine the proposed transferee's
creditworthiness and character. Landlord's consent to a Transfer shall not
release Tenant from performing its obligations under this Lease, but rather
Tenant's transferee shall assume all of Tenant's obligations under this Lease in
a writing satisfactory to Landlord, and Tenant and its transferee shall be
jointly and severally liable therefor. Landlord's consent to any Transfer shall
not waive Landlord's rights as to any subsequent Transfer. While the Premises or
any part thereof are subject to a Transfer, Landlord may collect directly from
such transferee all rents or other sums relating to the Premises becoming due to
Tenant or Landlord and apply such rents and other sums against the Rent and any
other sums payable hereunder. If the aggregate rental, bonus or other
consideration paid by a transferee for any such space exceeds the sum of (y)
Tenant's Rent to be paid to Landlord for such space during such period and (z)
Tenant's costs and expenses actually incurred in connection with such Transfer,
including reasonable brokerage fees, reasonable costs of finishing or renovating
the space affected and reasonable cash rental concessions, which costs and
expenses are to be amortized over the term of the Transfer, then fifty percent
(50%) of such excess shall be paid to Landlord within fifteen (15) days after
such amount is earned by Tenant. Such arrearage amounts in the case of a
sublease shall be calculated and adjusted (if necessary) on a Lease Year (or
partial Lease Year) basis, and there shall be no cumulative adjustment for the
Term. Landlord shall have the right to audit Tenant's books and records relating
to the Transfer. Tenant authorizes its transferees to make payments of rent and
any other sums due and payable, directly to Landlord upon receipt of notice from
Landlord to do so. Any attempted Transfer by Tenant in violation of the terms
and covenants of this ARTICLE IX shall be void. In the event that Tenant
requests that Landlord consider a sublease or assignment hereunder, Tenant shall
pay (i) Landlord's reasonable and documented expenses, not to exceed Five
Hundred and No/100 Dollars ($500.00) per transaction, actually incurred in
connection with the consideration of such request, and (ii) all reasonable
attorneys' fees and costs incurred by Landlord in connection with the
consideration of such request or such sublease or assignment.
-13-
Notwithstanding any provision to the contrary, Tenant may assign this Lease
or sublet the Premises without Landlord's consent (i) to any corporation or
other entity that controls, is controlled by or is under common control with
Tenant; (ii) to any corporation or other entity resulting from a merger,
acquisition, consolidation or reorganization of or with Tenant; (iii) in
connection with the sale of all or substantially all of the assets of Tenant, so
long as Tenant provides evidence to Landlord in writing that such assignment or
sublease complies with the criteria set forth in (i), (ii) or (iii) above and
provided the following conditions are met: (1) the net worth of the transferee
is equal to or greater than the greater of Tenant's net worth on the date of
this Lease, (2) if Tenant remains in existence as a separate legal entity
following the transfer, it shall not be released from liability under this
Lease, (3) the transferee shall assume in a writing delivered to Landlord all of
Tenant's obligations under the Lease effective upon the consummation of the
transfer, and (4) Tenant shall give written notice to Landlord of the proposed
transfer at least fifteen (15) days in advance of the consummation thereof. Any
transferee that meets the criteria in this paragraph shall hereinafter be
referred to as a "PERMITTED TRANSFEREE".
SECTION 9.2 ASSIGNMENT BY LANDLORD. Landlord shall have the right at
any time to sell, transfer or assign, in whole or in part, by operation of law
or otherwise, its rights, benefits, privileges, duties, obligations or interests
in this Lease or in the Premises, the Building, the Land, the Project and all
other property referred to herein, without the prior consent of Tenant, and such
sale, transfer or assignment shall be binding on Tenant. After such sale,
transfer or assignment, Tenant shall attorn to such purchaser, transferee or
assignee, and Landlord shall be released from all liability and obligations
under this Lease accruing after the effective date of such sale, transfer or
assignment.
SECTION 9.3 LIMITATION OF LANDLORD'S LIABILITY. Any provisions of
this Lease to the contrary notwithstanding, Tenant hereby agrees that no
personal, partnership or corporate liability of any kind or character
(including, without limitation, the payment of any judgment) whatsoever now
attaches or at any time hereafter under any condition shall attach to Landlord
or any of Landlord's Related Parties or any mortgagee for payment of any amounts
payable under this Lease or for the performance of any obligation under this
Lease. 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 Project. The provision contained in the foregoing
sentence is not intended to, and shall not, limit any right that Tenant might
otherwise have to obtain injunctive relief against Landlord or Landlord's
successors in interest or any suit or action in connection with enforcement or
collection of amounts which may become owing or payable under or on account of
insurance maintained by Landlord. In no event shall Landlord be liable to
Tenant, or any interest of Landlord in the Project be subject to execution by
Tenant, for any indirect, special, consequential or punitive damages.
Landlord's Initials: /s/ FHH Tenant's Initials: /s/ GJH
------------- --------------
ARTICLE X.
SECTION 10.1 SUBORDINATION. This Lease shall be subject and
subordinated at all times to (a) all ground or underlying leases now existing or
which may hereinafter be executed affecting the Project, and (b) the lien or
liens of all mortgages and deeds of trust in any amount or amounts whatsoever
now or hereafter placed on the Project or Landlord's interest or estate therein
or on or against such ground or underlying leases and to all renewals,
modifications, consolidations, replacements and extensions thereof and to each
advance made or hereafter to be made thereunder. Tenant shall execute and
deliver upon demand any instruments, releases or other documents requested by
any lessor or mortgagee for the purpose of subjecting and subordinating this
Lease to such ground leases, mortgages or deeds of trust. Tenant shall attorn to
any party succeeding to Landlord's interest in the Premises, whether by
purchase, foreclosure, deed in lieu of foreclosure, power of sale, termination
of lease or otherwise, only upon such party's request and at such party's sole
discretion but not otherwise. Notwithstanding such attornment, Tenant agrees
that any such successor in interest shall not be (a) liable for any act or
omission of, or subject to any rights of setoff, claims or defenses otherwise
assertable by Tenant against, any prior owner of the Project (including without
limitation, Landlord), (b) bound by any rents paid more than one (1) month in
advance to any prior owner, (c) liable for any Security Deposit not paid over to
such successor by Landlord, and (d) if such successor is a mortgagee or a ground
lessor whose address has been previously given to Tenant, bound by any
modification, amendment, extension or cancellation of the Lease not consented to
in writing by such mortgagee or ground lessor. Tenant shall execute all such
agreements confirming such attornment as such party may reasonably request.
Tenant shall not seek to enforce any remedy it may have for any default on the
part of Landlord without first giving written notice by certified mail, return
receipt requested, specifying the default in reasonable detail, to any mortgagee
or lessor under a lien instrument or lease covering the Premises whose address
has been given to Tenant, and affording such mortgagee or lessor a reasonable
opportunity to perform Landlord's obligations hereunder. Landlord hereby agrees
to provide Tenant with a Subordination, Non-Disturbance and Attornment Agreement
from its current mortgagee, Bank of America, N.A., on the form attached hereto
as EXHIBIT G. With respect to any future mortgagees, Landlord agrees to use
commercially reasonable efforts to obtain a Subordination, Non-Disturbance and
Attornment Agreement on such mortgagee's commercially reasonable standard form.
Notwithstanding the generality of the foregoing, any mortgagee or ground lessor
may at any time subordinate any such deeds of trust, mortgages, other security
instruments or ground leases to this Lease on such terms and conditions as such
mortgagee or ground lessor may deem appropriate.
SECTION 10.2 ESTOPPEL CERTIFICATE OR THREE-PARTY AGREEMENT. Tenant
agrees within ten (10) days following request by Landlord (a) to execute,
acknowledge and deliver to Landlord and any other persons specified by Landlord,
a certificate or three-party agreement among Landlord, Tenant and/or any third
party dealing with Landlord, certifying (i) that this Lease is unmodified and in
full force and effect, or, if modified, stating the nature of such modification
(ii) the date to which the Rent and other charges are paid in advance, if any,
(iii) that there are not, to Tenant's knowledge, any uncured defaults on the
part of Landlord hereunder, or so specifying such defaults, if any, as are
claimed and/or (iv) any other matters as such third party may reasonably require
in connection with the business dealings of Landlord and/or such third party and
(b) to deliver to Landlord audited financial statements that Tenant prepares
annually, including a balance sheet and a profit and loss statement for the most
recent two (2) years, all prepared in accordance with generally accepted
accounting principles consistently applied and certified by an independent
certified public accountant. Tenant's failure to deliver such certificate or
three-party agreement within such ten (10) day period shall be conclusive upon
Tenant (x) that this Lease is in full force and effect without modification
except as may be
-14-
represented by Landlord, (y) that to Tenant's knowledge there are no uncured
defaults in Landlord's performance, and (z) that no Rent has been paid in
advance except as set forth in this Lease. Landlord agrees to keep Tenant's
financial statements provided in accordance with the above provisions
confidential, and shall not disclose or share such financial statements or the
information contained therein with any other persons except Landlord's lenders,
advisors, leasing agents, investors, attorneys and prospective purchasers and
their lenders.
SECTION 10.3 NOTICES. Any notice, request, approval, consent or other
communication required or contemplated by this Lease must be in writing, unless
otherwise in this Lease expressly provided, and may be given or be served by
depositing the same in the United States Postal Service, postpaid and certified
and addressed to the party to be notified, with return receipt requested, or by
delivering the same in person to such party (or, in case of a corporate party,
to an officer of such party), or by prepaid telegram or express overnight mail
service, when appropriate, addressed to the party to be notified. Notice
deposited in the mail in the manner hereinabove described shall be effective
from and after three (3) days (exclusive of Saturdays, Sundays and postal
holidays) after such deposit. Notice given in any other manner shall be
effective only if and when delivered to the party to be notified or at such
party's address for purposes of notice as set forth herein. For purposes of
notice the addresses of the parties shall, until changed as herein provided, be
as provided on the first page of this Lease; provided, that any notices sent to
Landlord will only be effective if copies thereof are simultaneously sent to
Paragon Centre Associates, LLC, c/o Brookdale Investors Two, L.P., ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇
▇▇▇▇▇▇▇▇ and Brookdale Investors Two, L.P., c/o NTS Development Company, ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Property Manager -
Paragon Centre; and provided, that any notices sent to Tenant will only be
effective if copies thereof are simultaneously sent to the attention of Tenant
at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇▇, Esq., General Counsel. The parties hereto shall have the right from
time to time to change their respective addresses by giving at least fifteen
(15) days' written notice to the other party in the manner set forth in this
SECTION 10.3.
ARTICLE XI.
SECTION 11.1 RIGHT TO RELOCATE TENANT. [Intentionally Omitted]
SECTION 11.2 RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies
of Landlord under this Lease shall be nonexclusive and each right or remedy
shall be in addition to and cumulative of all other rights and remedies
available to Landlord under this Lease or at law or in equity. Pursuit of any
right or remedy shall not preclude pursuit of any other rights or remedies
provided in this Lease or at law or in equity, nor shall pursuit of any right or
remedy constitute a forfeiture or waiver of any Rent due to Landlord or of any
damages accruing to Landlord by reason of the violation of any of the terms of
this Lease.
SECTION 11.3 LEGAL INTERPRETATION. This Lease and the rights and
obligations of the parties hereto shall be interpreted, construed and enforced
in accordance with the laws of the state in which the Building is located and
the United States. The determination that one or more provisions of this Lease
is invalid, void, illegal or unenforceable shall not affect or invalidate any
other provision of this Lease, and this Lease shall be construed as if such
invalid, illegal or unenforceable provision had never been contained in this
Lease, and, so far as is reasonable and possible, effect shall be given to the
intent manifested by the portion held invalid or inoperative. All obligations of
either party hereunder not fully performed as of the expiration or termination
of the Term of this Lease shall survive the expiration or termination of the
Term of this Lease and shall be fully enforceable in accordance with those
provisions pertaining thereto. Article and section titles and captions appearing
in this Lease are for convenient reference only and shall not be used to
interpret or limit the meaning of any provision of this Lease. No custom or
practice which may evolve between the parties in the administration of the terms
of this Lease shall waive or diminish the right of Landlord to insist upon the
performance by Tenant in strict accordance with the terms of this Lease. This
Lease is for the sole benefit of Landlord and Tenant, and, without the express
written consent thereto, no third party shall be deemed a third party
beneficiary hereof. Tenant agrees that this Lease supersedes and cancels any and
all previous statements, negotiations, arrangements, brochures, agreements and
understandings, if any, between Landlord and Tenant with respect to the subject
matter of this Lease or the Premises and that this Lease, including written
extrinsic documents referred to herein, is the entire agreement of the parties,
and that there are no representations, understandings, stipulations, agreements,
warranties or promises (express or implied, oral or written) between Landlord
and Tenant with respect to the subject matter of this Lease or the Premises. It
is likewise agreed that this Lease may not be altered, amended, changed or
extended except by an instrument in writing signed by both Landlord and Tenant.
The terms and provisions of this Lease shall not be construed against or in
favor of a party hereto merely because such party is the "Landlord" or the
"Tenant" hereunder or because such party or its counsel is the draftsman of this
Lease. All references to days in this Lease and any Exhibits or Addenda hereto
mean calendar days, not working or business days, unless otherwise stated.
SECTION 11.4 TENANT'S AUTHORITY. Both Tenant and the person executing
this Lease on behalf of Tenant warrant and represent unto Landlord that (a)
Tenant is a duly organized and validly existing legal entity, in good standing
and qualified to do business in the state in which the Building is located, with
no proceedings pending or contemplated for its dissolution or reorganization,
voluntary or involuntary, (b) Tenant has full right, power and authority to
execute, deliver and perform this Lease, (c) the person executing this Lease on
behalf of Tenant is authorized to do so, (d) upon execution of this Lease by
Tenant, this Lease shall constitute a valid and legally binding obligation of
Tenant, and (e) upon request of Landlord, such person will deliver to Landlord
satisfactory evidence of the matters set forth in this Section.
SECTION 11.5 NO BROKERS. Landlord and Tenant warrant and represent to
the other that it has not dealt with any real estate broker and/or salesman
(other than NTS Development Company, who represented Landlord) in connection
with the negotiation or execution of this Lease and no such broker or salesman
has been involved in connection with this Lease, and each party agrees to
defend, indemnify and hold harmless the other party from and against any and all
costs, expenses, attorneys' fees or liability for any compensation, commission
and charges claimed by any real estate broker and/or salesman (other than the
aforesaid brokers) due to acts of such party or such party's representatives.
-15-
SECTION 11.6 CONSENTS BY LANDLORD. Except as otherwise expressly
provided in this Lease, in all circumstances under this Lease where the prior
consent or permission of Landlord is required before Tenant is authorized to
take any particular type of action, such consent must be in writing and the
matter of whether to grant such consent or permission shall be within the sole
and exclusive judgment and discretion of Landlord, and it shall not constitute
any nature of breach by Landlord under this Lease or any defense to the
performance of any covenant, duty or obligation of Tenant under this Lease that
Landlord delayed or withheld the granting of such consent or permission, whether
or not the delay or withholding of such consent or permission was prudent or
reasonable or based on good cause.
With respect to any provision of this Lease which provides that Tenant
shall obtain Landlord's prior consent or approval, Landlord may withhold such
consent or approval for any reason at its sole discretion, unless the provision
specifically states that the consent or approval will not be unreasonably
withheld.
With respect to any provision of this Lease which provides that Landlord
shall not unreasonably withhold or unreasonably delay any consent or any
approval, Tenant, in no event, shall be entitled to make, nor shall Tenant make,
any claim for, and Tenant hereby waives any claim for money damages; nor shall
Tenant claim any money damages by way of setoff, counterclaim or defense, based
upon any claim or assertion by Tenant that Landlord has unreasonably withheld or
unreasonably delayed any consent or approval, unless Landlord has acted in an
arbitrary and capricious manner; but Tenant's sole remedy shall be an action or
proceeding to enforce any such provision, or for specific performance,
injunction or declaratory judgment.
SECTION 11.7 JOINT AND SEVERAL LIABILITY. If there is more than one
Tenant, then the obligations hereunder imposed upon Tenant shall be joint and
several. If there is a guarantor of Tenant's obligations hereunder, then the
obligations hereunder imposed upon Tenant shall be the joint and several
obligations of Tenant and such guarantor, and Landlord need not first proceed
against Tenant before proceeding against such guarantor nor shall any such
guarantor be released from its guaranty for any reason whatsoever.
SECTION 11.8 INDEPENDENT COVENANTS. The obligation of Tenant to pay
Rent and other monetary obligations provided to be paid by Tenant under this
Lease and the obligation of Tenant to perform Tenant's other covenants and
duties under this Lease constitute independent, unconditional obligations of
Tenant to be performed at all times provided for under this Lease, save and
except only when an abatement thereof or reduction therein is expressly provided
for in this Lease and not otherwise, and Tenant acknowledges and agrees that in
no event shall such obligations, covenants and duties of Tenant under this Lease
be dependent upon the condition of the Premises or the Project, or the
performance by Landlord of its obligations hereunder.
SECTION 11.9 ATTORNEYS' FEES AND OTHER EXPENSES. In the event either
party hereto defaults in the faithful performance or observance of any of the
terms, covenants, provisions, agreements or conditions contained in this Lease,
the party in default shall be liable for and shall pay to the nondefaulting
party all expenses incurred by such party in enforcing any of its remedies for
any such default, and if the nondefaulting party places the enforcement of all
or any part of this Lease in the hands of an attorney, the party in default
agrees to pay the nondefaulting party's reasonable attorneys' fees in connection
therewith.
SECTION 11.10 RECORDING. Neither Landlord nor Tenant shall record this
Lease, but a short-form memorandum hereof may be recorded at the request of
Landlord or Tenant.
SECTION 11.11 DISCLAIMER; WAIVER OF JURY TRIAL. LANDLORD AND TENANT
EXPRESSLY ACKNOWLEDGE AND AGREE, AS A MATERIAL PART OF THE CONSIDERATION FOR
LANDLORD'S ENTERING INTO THIS LEASE WITH TENANT, THAT, EXCEPT AS OTHERWISE SET
FORTH IN THIS LEASE, LANDLORD HAS MADE NO WARRANTIES TO TENANT AS TO THE USE OR
CONDITION OF THE PREMISES OR THE PROJECT, EITHER EXPRESS OR IMPLIED, AND
LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY IMPLIED WARRANTY THAT THE PREMISES OR
THE PROJECT ARE SUITABLE FOR TENANT'S INTENDED COMMERCIAL PURPOSE OR ANY OTHER
WARRANTY (EXPRESS OR IMPLIED) REGARDING THE PREMISES OR THE PROJECT. EXCEPT AS
EXPRESSLY SET FORTH IN THIS LEASE, LANDLORD AND TENANT EXPRESSLY AGREE THAT
THERE ARE NO, AND SHALL NOT BE ANY, IMPLIED WARRANTIES OF MERCHANTABILITY,
HABITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER KIND ARISING OUT OF
THIS LEASE, ALL SUCH OTHER EXPRESS OR IMPLIED WARRANTIES IN CONNECTION HEREWITH
BEING EXPRESSLY DISCLAIMED AND WAIVED.
LANDLORD AND TENANT WAIVE THE RIGHT TO A TRIAL BY JURY IN
ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF THIS
LEASE. THIS WAIVER IS KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY MADE BY TENANT
AND TENANT ACKNOWLEDGES THAT NEITHER LANDLORD NOR ANY PERSON ACTING ON BEHALF OF
LANDLORD HAS MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY
JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. TENANT FURTHER ACKNOWLEDGES
THAT IT HAS BEEN REPRESENTED (OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED) IN
THE SIGNING OF THIS LEASE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL
COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO
DISCUSS THIS WAIVER WITH COUNSEL. TENANT FURTHER ACKNOWLEDGES THAT IT HAS READ
AND UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS WAIVER PROVISION AND AS
EVIDENCE OF SAME HAS EXECUTED THIS LEASE.
SECTION 11.12 NO ACCESS TO ROOF. Tenant shall have no right of access
to the roof of the Premises or the Building, except as set forth in Special
Stipulation No. 6 of EXHIBIT C attached hereto.
SECTION 11.13 PARKING. Tenant's occupancy of the Premises shall
initially include the use of up to ninety five (95) parking spaces (i.e., a
ratio of 3.70 per 1,000 square feet of Rentable Area) to Tenant, which shall be
used in common with other tenants, invitees and visitors of the Building. Tenant
shall have the right to park in the Building parking facilities in common with
other tenants of the Building upon such terms and conditions, including the
imposition of a reasonable parking charge, if the same is established by
Landlord at any time during the Term of this Lease. Tenant's
-16-
allotted parking spaces shall be increased based on the ratio set forth above
upon each applicable Commencement Date to reflect the addition of each portion
of the Premises as set forth in Section 2.1 of this Lease. Tenant's allotted
parking spaces shall be further modified to reflect any increases or decreases
in the Rentable Area of the Premises should this Lease later be amended to
reflect a change to the Rentable Area of the Premises. Tenant agrees not to
overburden the parking facilities and agrees to cooperate with Landlord and
other tenants in use of the parking facilities. Landlord reserves the right in
its absolute discretion to determine whether the parking facilities are becoming
overburdened and to allocate and assign parking spaces among Tenant and other
tenants, and to reconfigure the parking area and modify the existing ingress to
and egress from the parking area as Landlord shall deem appropriate.
SECTION 11.14 NO ACCORD OR SATISFACTION. No payment by Tenant or
receipt by Landlord of a lesser amount than the Rent and other sums due
hereunder shall be deemed to be other than on account of the earliest Rent or
other sums due, nor shall any endorsement or statement on any check or
accompanying any check or payment be deemed an accord and satisfaction; and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance of such Rent or other sum and to pursue any other remedy
provided in this Lease.
SECTION 11.15 ACCEPTANCE. The submission of this Lease by Landlord does
not constitute an offer by Landlord or other option for, or restriction of, the
Premises, and this Lease shall only become effective and binding upon Landlord,
upon full execution hereof by Landlord and delivery of a signed copy to Tenant.
SECTION 11.16 WAIVER OF COUNTERCLAIM. Tenant hereby waives the right to
interpose any counterclaim of whatever description in any summary proceeding.
SECTION 11.17 TIME IS OF THE ESSENCE. Time is of the essence of this
Lease. Unless specifically provided otherwise, all references to terms of days
or months shall be construed as references to calendar days or calendar months,
respectively.
SECTION 11.18 COUNTERPARTS. This Lease may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but such counterparts shall together constitute one and the same instrument.
SECTION 11.19 EXECUTION AND DELIVERY OF LEASE. This Lease shall not be
valid and binding on Landlord and Tenant unless and until it has been completely
executed by and delivered to both parties.
SECTION 11.20 REAL ESTATE INVESTMENT TRUST. During the Term of this
Lease, should a real estate investment trust become Landlord hereunder, all
provisions of this Lease shall remain in full force and effect except as
modified by this paragraph. If Landlord in good faith determines that its status
as a real estate investment trust under the provisions of the Internal Revenue
Code of 1986, as heretofore or hereafter amended, will be jeopardized because of
any provision of this Lease, Landlord may request reasonable amendments to this
Lease and Tenant will not unreasonably withhold, delay or defer its consent
thereto, provided that such amendments do not (a) increase the monetary
obligations of Tenant pursuant to this Lease or (b) in any other manner
adversely affect Tenant's interest in the Premises.
IN TESTIMONY WHEREOF, the parties hereto have executed this Lease as of the
day and year first above written.
LANDLORD:
PARAGON CENTRE ASSOCIATES, LLC, a Georgia limited
liability company
By: Brookdale Investors Two, L.P., a Delaware limited
partnership, as Managing Member
By: Brookdale Partners II, LLC, a
Georgia limited liability company,
its sole General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
TENANT:
TEXAS ROADHOUSE HOLDINGS LLC,
a Kentucky limited liability company
By: WKT Restaurant Corp., a Kentucky corporation,
its Manager
By: /s/ ▇. ▇. ▇▇▇▇
----------------------------------------
Name: ▇. ▇. ▇▇▇▇
-----------------------------------------
Title: President
----------------------------------------
-17-
EXHIBIT A
LEGAL DESCRIPTION OF LAND - TWO PARAGON CENTRE
Being a portion of the tract conveyed to Louisville Dutchmans Lane Associates,
Ltd., as recorded in Deed Book 5533 Page 278, in the Office of the County Clerk
of Jefferson County, Kentucky; and more particularly described as follows:
BEGINNING at a pipe at the intersection of the southerly line of Dutchmans
Lane as established in instrument of record in Deed Book 1238 Page 397, in the
Office of the Clerk of the County Court of Jefferson County, Kentucky, thence
with the northwesterly line of the tract conveyed to Louisville Dutchmans Lane
Associates, Ltd. by Deed of record in Deed Book 5533 Page 278, in the Office of
the Clerk aforesaid; thence with the southerly line of Dutchmans Lane and with
an arc of a curve to the left having a radius of 216.33 feet and the following
chords:
South 66 degrees 19 minutes 48 seconds East 43.05 feet to an iron pipe; South 78
degrees 40 minutes 38 seconds East 50.00 feet to an iron pipe; North 88 degrees
03 minutes 02 seconds East 50.00 feet to an iron pipe; North 74 degrees 46
minutes 42 seconds East 50.00 feet to an iron pipe; North 61 degrees 30 minutes
22 seconds East 50.00 feet to an iron pipe; thence continuing with the
southeasterly line of Dutchmans Lane, North 54 degrees 52 minutes 12 seconds
East 46.50 feet to an iron pipe in the southwesternmost corner of the tract
conveyed to Louisville OPC Associates, Ltd. by Deed of record in Deed Book 5559
Page 255; thence with the most pipe; southwesterly line of said tract South 35
degrees 07 minutes 48 seconds East 31.00 feet to an iron thence South 46 degrees
11 minutes 52 seconds East 112.93 feet to an iron pipe; thence with an arc of a
curve to the left having a radius of 867.00 feet, and a chord of South 48
degrees 27 minutes 20 seconds East 118.26 feet to an iron pipe; thence with the
arc of a curve to the right having a radius of 12.00 feet and a chord of South
06 degrees 36 minutes 16 seconds East 17.20 feet; thence South 39 degrees 09
minutes 26 seconds West 18.32 feet to an iron pipe; South 50 degrees 50 minutes
34 seconds East 24.00 feet to an iron pipe; North 84 degrees 09 minutes 25
seconds East 62.44 feet to an iron pipe; thence with the arc of a curve to the
right having a radius of 11.00 feet, and a chord of South 73 degrees 20 minutes
26 seconds East 8.43 feet; thence the following courses and distances: South 50
degrees 50 minutes 16 seconds East 5.34 feet to an iron pipe; South 05 degrees
50 minutes 34 seconds East 34.25 feet to an iron pipe; South 47 degrees 17
minutes 46 seconds East 243.59 feet to an iron pipe on the west line of
right-of-way for ▇▇▇▇▇▇▇▇▇ Expressway I-264, said point also being on the
southeasternmost line of the tract conveyed to Louisville OPC Associates, Ltd.
as recorded in Deed Book 5559 Page 255 in aforementioned clerks office; thence
along West right-of-way line of ▇▇▇▇▇▇▇▇▇ Expressway I-264, South 59 degrees 37
minutes 00 seconds West 389.94 feet to an iron pipe; thence leaving the existing
right-of-way of ▇▇▇▇▇▇▇▇▇ Expressway I-264, with the following courses, North 33
degrees 22 minutes 13 seconds West 701.67 feet to the POINT OF BEGINNING
containing approximately 4.410 acres.
EXCEPTING THEREFROM that certain parcel conveyed to the Commonwealth of Kentucky
by Deed of Conveyance dated June 28, 1989, and recorded in Deed Book 5876 Page
97 in the Office of the Clerk of the County Court of Jefferson County, Kentucky,
and further described as follows:
BEGINNING at a point in the existing access control and right of way line, said
point being the Grantor's east property corner, 38.00 feet left of I-264 Station
606+52.59; thence with said existing access control and right of way line and
the Grantor's southeast property line South 60 degrees 51 minutes 23 seconds
West (Grantor's Survey South 59 degrees 37 minutes 00 second West), 389.94 feet
to the Grantor's south property corner 38.00 feet left of I-264 Station
602+62.65; thence with the Grantor's southwest property line North 32 degrees 07
minutes 50 seconds West (Grantor's Survey North 33 degrees 22 minutes 13 seconds
West), 98.13 feet to a point in the proposed access control and right of way
line 136.00 feet left of I-264 Station 602+57.54; thence with said proposed
access control and right of way line the following courses: South 89 degrees 45
minutes 09 seconds East, 77.43 feet to a point 98.00 feet left of I-264 Station
603+25.00; North 60 degrees 15 minutes 12 seconds East, 308.38 feet to a point
in the Grantor's northeast property line 101.25 feet left of I-264 Station
606+33.36; thence with said northeast property line South 46 degrees 03 minutes
23 seconds East (Grantor's Survey South 47 degrees 17 minutes 46 seconds East),
66.11 feet to the point of beginning containing approximately 0.567 acre.
A-1
EXHIBIT B
FLOOR PLAN OF PREMISES
[GRAPHIC]
Two Paragon Centre
FIRST FLOOR
EXHIBIT C
SPECIAL STIPULATIONS
These Special Stipulations are hereby incorporated into this Lease and in
the event that they conflict with any provisions of this Lease, these Special
Stipulations shall control.
1. RIGHT OF FIRST OFFER.
Prior to execution of a lease for the approximately 15,000 square feet of
Rentable Area depicted on EXHIBIT C-1 attached hereto (the "First Offer
Space"), during the first four (4) years of the Term of this Lease, and so
long as Tenant is not then in default under this Lease, Landlord will
notify Tenant of the terms and conditions upon which it would be willing to
lease the First Offer Space to Tenant.
If within ten (10) business days after receipt of Landlord's notice, Tenant
agrees in writing to lease the First Offer Space at the current market rate
then being charged by Landlord for comparable space in the Building and
upon such terms and conditions set forth in Landlord's notice, Landlord and
Tenant will execute an amendment to this Lease adding the First Offer Space
to the Premises within ten (10) business days after Landlord's receipt of
Tenant's notice of intent to lease upon all the same terms as this Lease
except as modified by the terms in Landlord's notice. If Tenant does not
deliver its notice of intent to lease the First Offer Space or elects not
to lease the First Offer Space within such 10 business-day period, then
this right of first offer to lease the First Offer Space will lapse and be
of no further effect and Landlord will have the right to lease the First
Offer Space to any third party on the same or any other terms and
conditions, whether or not such terms and conditions are more or less
favorable than those offered to Tenant. The right granted to Tenant under
this paragraph is personal to Tenant and to any Permitted Transferee;
furthermore, in the event of any assignment of this Lease to a party other
than a Permitted Transferee or a sublease to a party other than a Permitted
Transferee Tenant of more than fifty percent (50%) of the Premises, this
right of first offer to lease the First Offer Space shall thenceforth be
null and void and of no further force and effect.
2. EXTENSION OPTION.
(a) So long as this Lease is in full force and effect and Tenant is not in
default beyond any applicable notice and cure period in the
performance of any of the covenants or terms and conditions of this
Lease at the time of notification to Landlord or at the time of
commencement of the Extension Period, as that term is hereinafter
defined, Tenant shall have the option (the "Extension Option") to
extend the Term for the entire Premises for one (1) additional period
of five (5) years (the "Extension Period"), which Extension Period
shall commence upon the expiration of the initial Term upon the same
terms and conditions of this Lease, except that the Base Rent during
the Extension Period shall be at an annual rate equal to ninety five
percent (95%) of the then current fair market value rate for lease
renewals and extensions comparable to this Lease for space comparable
to the Premises in the Building, taking into account such factors as
tenant improvement allowances, rent concessions and rental escalations
(the "FMR"), subject to the following terms and conditions: Tenant
shall provide Landlord with written notice of its desire to extend the
Term of this Lease nine (9) months prior to the expiration of the
initial Term. In the event Tenant timely exercises this Extension
Option, this Lease shall be deemed extended and the FMR shall be
determined as set forth below. In the event that Landlord does not
receive Tenant's written notice nine (9) months prior to the
expiration of the initial Term, then such Extension Option shall be
null and void and of no further force or effect, this Lease shall
expire on the Expiration Date (as that term is defined in Article I),
and if requested by Landlord, Tenant shall execute an instrument in
form and substance acceptable to Landlord confirming such facts.
(b) The FMR shall be determined by Landlord and Tenant by mutual
agreement; however, if Landlord and Tenant cannot agree in writing on
the FMR within ten (10) days after Landlord's receipt of Tenant's
notice of its election to extend this Lease, the FMR shall be
determined by the Three Broker Method set forth below. Tenant shall
have the option to select a real estate broker, who shall act on
Tenant's behalf in determining the FMR and Expense Stop within five
(5) business days after the expiration of the 10-day period. Landlord
must select a real estate broker within five (5) business days after
written notice of Tenant's selection. Landlord, by written notice to
Tenant shall designate a real estate broker, who shall act on
Landlord's behalf in the determination of the FMR and Expense Stop. If
either Landlord or Tenant fails or refuses to select a broker, the
other broker shall alone determine the FMR. Otherwise, within ten (10)
days after the selection of Landlord's broker, Landlord and Tenant's
brokers shall then select a third broker meeting the qualifications
stated below, and each broker, within fifteen (15) days after the
third broker is elected, shall submit his or her determination of the
FMR. The FMR shall be the determination of the broker that is not the
highest or the lowest (or, if two brokers reach an identical
determination, the determination of such two brokers). Landlord and
Tenant shall each pay the fee of the broker selected by it, and they
shall equally share the payment of the fee of the third broker.
(c) In the event that the appraisal process has not been completed prior
to the commencement of the Extension Period, then upon commencement of
the Extension Period, and until the process is completed (the "Interim
Period"), Tenant shall pay Landlord monthly Base Rent and Additional
Rent equal to the Base Rent and Additional Rent for the immediately
preceding Lease year, until the increase in the Base Rent is
determined by such process as provided herein; provided, however, that
such payments made during the Interim Period shall be subject to
adjustment based upon the results of such process. If, as a result of
such appraisal process, it is determined that Tenant has underpaid
Base Rent and Additional Rent during the Interim Period, then such
underpaid Base Rent and Additional Rent shall be due from Tenant to
Landlord within ten (10) days after expiration of the Interim Period.
All brokers selected in accordance with this subparagraph must be
licensed in the state of Kentucky as a real estate broker and shall
have at least ten (10) years prior experience in commercial office
leasing in the metropolitan area of Louisville, Kentucky. Landlord and
Tenant agree that they shall be bound by the determination of the FMR
pursuant to this subparagraph for the Extension Period.
(d) Tenant shall accept the Premises in their existing condition (on an
"as is" basis) upon the commencement of the Extension Period and
Landlord shall have no obligation to grant or pay any allowance,
abatement or concession of any kind with respect to the Premises.
Tenant shall have no option to renew or extend this Lease beyond the
expiration of the Extension Period.
(e) This Extension Option is personal to Tenant and to any Permitted
Transferee; furthermore, in the event of an assignment of this Lease
to a party other than a Permitted Transferee or a sublease to a party
other than a Permitted Transferee by Tenant of more than fifty percent
(50%) of the Premises, this Extension Option shall become null and
void and of no further force or effect.
3. CONDITION OF LEASE.
Landlord's agreement to enter into this Lease and to terminate the Prior
Lease is expressly conditioned upon Tenant's full and complete performance
of all obligations of Tenant under the Prior Lease, including, without
limitation, the payment by Tenant of all Rent, Additional Rent and other
amounts due and payable under the Prior Lease through the Commencement Date
of this Lease. Should Tenant fail to satisfy such obligations within
applicable notice and cure periods set forth in the Prior Lease, Landlord
shall have the option to terminate this Lease.
4. SIGNAGE.
So long as Tenant is not in default under this Lease past applicable notice
and cure periods, Tenant shall have the right to install and maintain, at
its sole cost and expense, signage depicting Tenant's identification logo
and name on (i) the portion of the Building facing the ▇▇▇▇▇▇▇▇▇ Expressway
(I-264), (ii) the existing monument sign located between the Building and
One Paragon Centre, and (iii) the existing monument sign located on
Dutchmans Lane, subject to the following terms and conditions:
(a) The location, design, construction, size, lighting, font of
lettering, method of attachment of the individual letters and all
other aspects of such signage shall be subject to Landlord's written
consent prior to the fabrication and installation of such signage,
which consent shall not be unreasonably withheld or delayed and such
signage must also comply with all applicable rules, regulations
ordinances and laws including, without limitation, zoning
ordinances.
(b) The expense of installing, constructing, maintaining and removing
the sign shall be the sole cost and expense of Tenant and shall be
paid directly by Tenant. Tenant shall be responsible for all costs
and expenses associated with such signage and Tenant shall promptly
repair any damage to the Building resulting from the installation,
construction, maintenance or removal of such signage, normal wear
and tear, fire or other casualty excepted.
(c) Tenant hereby agrees to indemnify and hold Landlord harmless for any
cost, expense, loss or other liability associated with the
installation, construction, maintenance and removal of the sign.
(d) The foregoing rights granted to Tenant under this Special
Stipulation No. 4 shall be personal to Tenant and to any Permitted
Transferee (provided that Landlord shall have prior approval rights
over any change in the name on such signage in addition to the
approval rights set forth above); furthermore, in the event of any
assignment of this Lease to a party other than a Permitted
Transferee or subletting of the Premises to a party other than a
Permitted Transferee by Tenant of more than fifty percent (50%) of
the Premises, Tenant's signage rights as contained herein shall not
be transferable or assignable to such third-party assignee or
subtenant. Upon such an assignment of this Lease or subletting by
Tenant, this right shall become null and void and of no further
force and effect, and Tenant shall immediately remove the
identification signage from the Building as provided in subparagraph
(e) below, unless the continuance and/or transfer of such signage
rights and the proposed signage for is approved by Landlord.
(e) Upon the expiration or earlier termination of this Lease, Tenant
shall promptly remove the identification signage and reimburse
Landlord for all costs and expenses associated with any damage to
the Building caused by such removal.
5. ADDITIONAL ALLOWANCE.
Landlord shall provide to Tenant an additional allowance in the amount of
Fifty Thousand and No/100 Dollars ($50,000.00) (the "Additional Allowance")
to cover costs incurred by Tenant for signage and the purchase and
installation of exercise equipment. The Additional Allowance shall be paid
by Landlord to Tenant within ten (10) days after the execution by and
delivery of this Lease by Landlord and Tenant.
6. SATELLITE ANTENNA EQUIPMENT.
Subject to the terms and conditions set forth herein, Landlord hereby
grants to Tenant a license to install, maintain and operate a satellite
dish and related antenna equipment on the roof of the Building (the
"Equipment"), including necessary wiring and cabling, subject to the
following terms and conditions:
(a) The size, location, configuration, specifications, and operational
frequency of the Equipment shall be approved by Landlord prior to
Tenant's installation of the Equipment. Tenant shall deliver to
Landlord Tenant's plans and specifications for the installation of
the Equipment and the surrounding screening for review and approval
by Landlord's engineer not less than thirty (30) days prior to
commencing installation
C-2
of the Equipment. Notwithstanding the foregoing, Landlord hereby
approves the size, configuration, specifications and operational
frequency of the Equipment depicted on EXHIBIT C-2 hereto. Tenant
shall reimburse Landlord for all third party out-of-pocket costs and
expenses incurred by Landlord in connection with Landlord or its
designated agent's review and approval of such plans and
specifications as well as ensuring Tenant's compliance with this
provision.
(b) Provided that Tenant has submitted to Landlord (a) details plans and
specifications for the installation of the Equipment, (b) copies of
all required or appropriate governmental or quasi-governmental
permits, licenses and authorizations obtained by Tenant at its
expense, and (c) a certificate of insurance from Tenant and the
installer of the Equipment evidencing insurance coverage as required
under this Lease and by Landlord, naming Landlord as an additional
insured, and provided further that Tenant is in compliance with the
terms herein in connection with the installation, maintenance,
repair, operation and removal of the Equipment, Tenant shall have
the right to install the Equipment in an aesthetically pleasing
manner and Tenant shall exercise all reasonable steps to shield or
screen the Equipment from public view. Tenant shall fence or screen
the Equipment so as to minimize any risks to ensure that the
Equipment does not create a nuisance.
(c) Tenant shall operate the Equipment in compliance with all applicable
laws, rules, regulations and ordinances.
(d) Tenant shall be responsible for maintaining the Equipment in good
condition at its sole cost and expense. Tenant shall provide written
notice to Landlord twenty-four (24) hours in advance, except in the
event of an emergency, to notify Landlord when Tenant intends to
install and/or access the Equipment.
(e) Landlord shall perform all roof penetrations and modifications
necessary for the installation, maintenance or removal of Tenant's
Equipment. Tenant will reimburse Landlord for all third party
out-of-pocket costs and expenses incurred by Landlord in connection
with such roof penetrations and modifications.
(f) Tenant hereby agrees to indemnify and hold Landlord, its agents,
employees, contractors and representatives, harmless from and
against any and all cost, claims, damages (including, but not
limited to, any damage to the Building, the roof or Landlord's
property), causes of action and liability which may arise by reason
of any occurrence attributable to or arising out of Tenant's
installation, maintenance, repair, operation or removal of any of
the Equipment, including without limitation, any claim or cause of
action for injury to or death of any person or damage to any
property arising therefrom and Tenant agrees to defend any claim or
demand against Landlord, its agents or employees arising out of any
such occurrence. Tenant shall, upon thirty (30) days prior written
notice from Landlord, reimburse Landlord for all costs and expenses
incurred by Landlord as a result of Tenant's operation of the
Equipment, including damages to the Building and the furnishing of
electric power for the operation of the Equipment.
(g) During the term of the license, Tenant shall pay to Landlord the
monthly sum of One Hundred Five and No/100 Dollars ($105.00) as
monthly rental for the license granted in this Special Stipulation
No. 6.
(h) Tenant's Equipment shall not hinder or unreasonably interfere with
any other tenants' or licensees' installation, operation and
maintenance or repair of antennae or satellite equipment.
(i) Landlord reserves the right to enter into a contract with a
third-party manager for the leasing and management of the roof of
the Building. Tenant shall be responsible for complying with all
reasonable rules and regulations established by such manager.
C-3
EXHIBIT C-1
FIRST OFFER SPACE
[GRAPHIC]
Two Paragon Centre
FIRST FLOOR
[GRAPHIC]
Two Paragon Centre
SECOND FLOOR
[GRAPHIC]
Two Paragon Centre
THIRD FLOOR
NORTH
[GRAPHIC]
EXHIBIT C-2
EQUIPMENT (SATELLITE)
AGREEMENT REGARDING SATELLITE ANTENNA
THIS AGREEMENT REGARDING SATELLITE ANTENNA ("Agreement") is made this 6th
day of November, 2001 (the "Effective Date"), by and between, Paragon Centre
Associates, L.L.C., a Georgia limited liability company, ("Landlord"), and Texas
Roadhouse Holdings LLC ("Tenant"). For good and valuable consideration, the
receipt and adequacy of which is hereby mutually and respectively acknowledged
by them, Landlord and Tenant hereby covenant, contract, acknowledge, and agree
as follows:
1. Landlord and Tenant are also parties to a Lease dated September 24,
1997, as amended by that certain First Amendment to lease dated une 29, 1999,
and a Consent of Landlord to Assignment dated June 30, 1999 ("Lease") for those
premises located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
("Premises").
Any breach or Default by Tenant under the Lease shall also be a breach
or Default under this Agreement. Any breach or Default by Tenant of this
Agreement shall also be a breach or Default under the Lease and shall be
governed by Article VIII of the Lease.
2. Provided (but not otherwise) Tenant always fully, duly, and timely
complies with all its obligations, duties, and responsibilities under the Lease
and this Agreement, Tenant, subject to the other contents of this Agreement and
subject to the contents of the Lease, shall have the rights described in this
Agreement.
3. The general purpose of this Agreement is to allow Tenant, subject to
the terms, provisions, and contents of this Agreement and at Tenant's sole risk,
responsibility, and expense, to install, maintain, repair, operate and remove
one Satellite Antenna Receiving Dish ("the Satellite Antenna") on, at, or from
the roof area of the Building (as defined in the Lease), the exact placement of
the Satellite Antenna to be as Landlord, at its reasonable discretion, from time
to time directs, provided that the functionality of the Satellite Antenna for
Tenant's intended use is not impaired, including, without limitation, the right
of Landlord to require Tenant to relocate the Satellite Antenna on the roof from
time to time at Tenant's sole cost and expense. This Agreement absolutely may
not and absolutely shall not be assigned or otherwise transferred by Tenant or
anyone on
its behalf except to an assignee of the Lease as permitted under the terms of
the Lease. The size, configuration, specifications, and operational frequency of
the Satellite Antenna are depicted on Exhibit "A" attached hereto and expressly
made a part hereof. To the extent known or controlled by Tenant, no persons or
parties other than the Tenant shall in any way whatsoever use, utilize, or
obtain any benefit from the Satellite Antenna.
4. Tenant shall not install, maintain, repair, operate, or remove the
Satellite Antenna until Tenant first receives in each instance the written
approval of Landlord therefore, which approval shall be at Landlord's reasonable
discretion. Before seeking in each instance such approval, Tenant shall submit
to Landlord: (a) detailed plans and specifications and other pertinent data and
information, with respect to the under-taking, (b) copies of all required or
appropriate governmental and quasi-governmental permits, licenses and
authorizations, same to be obtained by Tenant at its sole responsibility and
expense, and (c) a certificate of insurance evidencing insurance coverage as
required by the Lease and any other insurance required by Landlord (in its
reasonable discetion) as regards the installation, maintenance, repair,
operation, or removal of the Satellite Antenna. In no event whatsoever shall
such installation, maintenance, repair, operation, or removal of the Satellite
Antenna in any way whatsoever damage the building located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ( the "Building") or any of its appurtenances
or facilities, interfere with or impede any services provided by Landlord or the
other tenants or occupants of the Building, or otherwise adversely affect the
operation of the Building or any of the appurtenances or facilities. Tenant will
notify Landlord 24 hours in advance, unless in an emergency, when it desires
access to the Satellite Antenna. Provided that Tenant has complied with the
terms and conditions of this Agreement, including, without limitation, the
delivery of the items referenced in (a), (b), and (c) above and the Installer's
insurance certificate referenced in Paragraph 5 below, and Landlord has given
its written approval, Tenant shall have the right to effect the installation of
the Satellite Antenna on the Effective Date of this Agreement.
5. Any Contractors, subcontractors, etc., hired or engaged by Tenant to
effect or assist in the installation, maintenance, repair, operation, or removal
of the Satellite Antenna must first be approved in writing by the Landlord,
which approval shall be at Landlord's reasonable discretion. Landlord hereby
requires
such contractors, subcontractors, etc., to provide lien waivers and to be bonded
and insured in such amounts and with such coverage as Landlord may in its
reasonable discretion prescribe. Landlord recognizes that Tenant has elected to
use Spacenet (the "Installer") for the performance of all installation, repair,
maintenance, operation, and removal obligations hereunder and Landlord hereby
approves Spacenet as Tenant's contractor. Further the Installer or any other
contractors must name Landlord, as an additional insured on such insurance
policies and prior to undertaking any work with respect to this Agreement, the
Installer or other such contractors shall provide Landlord with a Certificate of
Insurance at limits as reasonably reqested by the Landlord naming Landlord as an
additional insured.
6. The term of this Agreement shall begin on the Effective Date, and,
subject to the other contents of this Agreement, shall be coterminous with the
term (as may be extended) of the Lease. Notwithstanding the foregoing, Tenant,
for any or no reason whatsoever, may at any time cancel this Agreement upon not
less than thirty (30) days' prior written notice to the Landlord so stating,
provided that such cancellation of this Agreement shall have no effect
whatsoever on the term, provisions or contents of the Lease. Nothing in this
Paragraph 6 shall prohibit Landlord from terminating this Agreement in the event
that Tenant defaults under this Agreement and such default is not cured within
30 days after receipt of notice from Landlord in the event of a non-monetary
default, or within 10 business days after receipt of notice from Landlord in the
event of a monetary default.
7. Tenant, during the first nine months of this Agreement, shall pay
Landlord as rent the monthly sum of ONE HUNDRED AND NO/100 Dollars ($100.00).
Thereafter, such rent shall be subject to adjustments, from time to time, but no
more frequently than one time per calendar year, and in no event more than three
percent per calendar year, as Landlord, in its reasonable discretion, elects.
Rent during the term of this Agreement shall be due on the first day of each
month, commencing on the Effective Date, and shall be payable with rent due
under the Lease. Landlord will provide Tenant with 30 days prior written notice
of any adjustment to the rent due under this Agreement. Tenant shall have no
right to an abatement, reduction, diminution, deduction, offset, or recoupment
of such rent if for any, or no, reason whatsoever (other than Landlord's default
under this Agreement) Tenant is unable to, or does not, use the Satellite
Antenna. Any monies payable by Tenant to Landlord under this
Agreement, at Landlord's option, may be deemed to be Additional Rent (as defined
in the Lease) due Landlord from Tenant under the Lease.
8. Tenant shall fully, completely, and absolutely hold harmless,
indemnify and defend Landlord against any and all, claims, actions, losses,
damages, liabilities, costs, and expenses, including, without limitation,
attorneys' fees through final appeal, in any way whatsoever associated with the
Satellite Antenna and its use, non-use, installation, maintenance, repair,
operation, or removal.
9. Landlord reserves the right, in its reasonable discretion, to
require Tenant at Tenant's sole risk, responsibility, and expense, to relocate
at any time and from time to time the Satellite Antenna, such relocation to be
effected as Landlord, in its reasonable discretion, prescribes, provided that
the functionality of the Satellite Antenna for Tenant's intended use is not
impaired.
10. At the expiration or earlier termination of this Agreement, Tenant
shall, within 15 business days thereafter, remove the Satellite Antenna, such
removal to be at Tenant's sole risk, expense, and responsibility and to be
effected as Landlord, in its reasonable discretion, prescribes. Tenant, at its
sole risk, expense, and responsibility shall repair any and all damage caused by
such removal, such repair to be effected as Landlord, in its reasonable
discretion, prescribes. If Tenant does not effect such removal and/or repair
above-described, then Tenant hereby authorizes Landlord to do so and to charge
Tenant for all costs and expenses incurred in doing so, PLUS the greater of (i)
$500.00 or (ii) twenty percent of all costs and expenses incurred in effecting
the removal and/or repair, for Landlord's overhead and inconvenience in doing
so, and Landlord shall incur no liability of any nature whatsoever in doing so,
and Tenant hereby agrees to indemnify and hold harmless the Landlord as provide
in Paragraph 8 hereof in connection with such removal and/or repair.
IN WITNESS WHEREROF, LANDLORD and TENANT have duly executed this Agreement as of
the day and year first above written, each acknowledging receipt of an executed
copy hereof together with all EXHIBITS referenced herein.
Signed and Acknowledged "TENANT"
In the Presence of:
TEXAS ROADHOUSE HOLDINGS LLC
a Kentucky limited liability company
By: WKT Restaurant Corp., Its Manager
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇.▇. ▇▇▇▇
------------------------- -----------------------------------
Witness
Printed Name:
/s/ ▇.▇. ▇▇▇▇
--------------------------------------
Title:
President
--------------------------------------
Signed and Acknowledged "LANDLORD"
In the Presence of:
PARAGON CENTRE ASSOCIATES, LLC
a Georgia limited liability company
By: Brookdale Investors Two, L.P., a
Delaware limited partnership, its sole
Member
By: Brookdale Partners II, LLC, a
Georgia limited liability company,
its sole General Partner
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------ ------------------------------------
Witness
Printed Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Title:
Manager
---------------------------------------
[GILAT LOGO]
[GE LOGO]
SPACENET
SKYSTAR ADVANTAGE
BUILDING OWNER AND LANDLORD
INFORMATION GUIDE
02-MSC00-005
6/21/99
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[ILLEGIBLE]
Page 1
SATELLITE COMMUNICATION SYSTEMS
INTRODUCTION
Over the last few years private satellite networks have experienced rapid growth
in both the government and commercial sectors. This is, in large part, due to
major technological advances in both satellite design as well as the
miniaturization of electronics used in receiving earth stations. Consequently,
compact receiving dishes known as very small aperture terminals (VSATs), are as
easily installed in the inner city as remote rural areas. This is a significant
cost and logical advantage to growing companies that depend on communication
networks in a rapidly changing environment.
LANDLORD CONSIDERATIONS
As an owner/Landlord, you probably have questions regarding your tenants' use of
this network in your building. Be assured that issues such as safety,
aesthetics, location alternatives, and professional installation are as integral
to a successful VSAT network as any other performance standard. Only after a
rigorous analysis of these issues (and Spacenet's ability to deliver them), did
your tenant decide to proceed to the next step of implementation. All
liabilities associated with the installation and preparation of the station are
assumed by the tenant.
[GRAPHIC]
SITE VISIT
In the next few weeks you will be contacted by someone representing your tenant
in an effort to arrange one or more site visits with you. Naturally, your
involvement in this process is important and welcome. The purpose of this
brochure is to introduce you to the VSAT and hopefully answer as many questions
as possible prior to the installation.
BUILDING OWNER AND LANDLORD INFORMATION GUIDE
Page 3
VSAT MOUNT ALTERNATIVES
VSAT MOUNTS
Working in conjunction with Spacenet Your tenant will be responsible for all
preparation activities necessary to install a VSAT on your premises. Our
objectives is to select a mount that is technically viable, yet aesthetically
and practically acceptable to you. In order to meet these mutual needs, Spacenet
provides two standard mount alternatives to support the antenna. They are the 1)
Non-penetrating roof mount, and 2) Wall Mount. The mount that is appropriate for
your location is determined during installation or at the pre-installation site
survey.
THE NON-PENETRATING ROOF MOUNT
In most cases, the VSAT will be installed using a non-penetrating roof mount.
The mount base maintains direct contact with the roof surface through a
rubberized pad placed underneath the base. The pad has the dual role of
increasing the surface friction to the roof while simultaneously protecting roof
surfaces and membranes. The mount and pad combination are compatible with most
(if not all), roof surfaces. The load frame is designed to distribute the total
weight of the antenna mount assembly over a wide area. Total distributed weight
on the roof is designed to be in accordance with national building code weight
load standards.
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BUILDING OWNER AND LANDLORD INFORMATION GUIDE
Page 4
MOUNT ALTERNATIVES CONTINUED...
If the non-penetrating mount is not appropriate for your location, there are
alternative wall mounts that will meet virtually any site need. The mount shown
here is the most common. Other variations of this mount differ in the extension
distance from the wall necessary to clear the roof overhang.
[GRAPHIC]
BUILDING OWNER AND LANDLORD INFORMATION GUIDE
Page 5
ZONING ISSUES
In 1996 the Federal Communications Commission issued a ruling that preempted
certain local regulations of satellite earth station antennas to ensure that all
Americans are able to have as many choices as possible for delivery of video
programming and data services. This action was taken because of evidence that
some local jurisdictions were inhibiting the growth of satellite services by
enforcing overly restrictive and unreasonable zoning laws.
In crafting the new rule, the Commission carefully considered the important
interests of state and local authorities in managing land use in their
communities. Against those interests it balanced the federal interest in
ensuring easy access to satellite-delivered services which have become
increasingly important in the last several years and are dependent on rapid and
inexpensive antenna installation. The preemption rule adopted by the FCC
accommodates federal and state and local interests and provides the FCC with a
method of reviewing disputes that will avoid excessive federal involvement in
local land-use issues.
The FCC rule preempts any state or local zoning, land-use, building, or similar
regulation that affects the installation, maintenance, or use of a satellite
earth station antenna that is two meters or less in diameter and is located or
proposed to be located in any area where commercial or industrial uses are
generally permitted by nonfederal land-use regulation; or
Local jurisdictions that can demonstrate a compelling health, safety, or
aesthetic need to enforce regulations inconsistent with the FCC rule may apply
for a waiver from the FCC. These applicants must show that the local concerns
are of a highly specialized or unusual nature.
BUILDING OWNER AND LANDLORD INFORMATION GUIDE
Page 6
COMMON QUESTIONS
Q. WHO PERFORMS THE SITE SURVEY AND INSTALLATION?
A. The site survey is usually performed at the time of installation by the
trained Spacenet installation team. The installer carries a selection of
mounts and determines the location and mount type at this time. If he
determines that none of the mounts is suitable, or there is another
problem, which prevents installation, the installer completes a formal
site survey, which is returned to Spacenet for review by Engineering.
Both the end user and the Landlord are welcome to review the installation
plan with the installer.
B. Some customers may decide to perform their own site surveys prior to
installation. The survey is usually conducted with a representative of
the tenant and a representative of the landlord. Issues which are
specific to the site are generally resolved at the time of the survey.
The surveyor will document the results of the survey, which always
includes photographs.
Q. HOW WILL THE TYPE OF VSAT MOUNT BE SELECTED FOR MY LOCATION?
A. Spacenet offers a variety of mounts to meet almost any requirement. Your
tenant and an insured professional installer will work with you to select
a suitable, inconspicuous location to mount the dish. The mount types
most often selected are discussed in this flyer.
Q. WHO IS RESPONSIBLE FOR PROBLEMS THAT DEVELOP AFTER THE DISH IS INSTALLED?
A. As far as the owner/landlord is concerned the tenant will assume all
liability associated with the installation and preparation of the station
until the unit is removed. A separate agreement between your tenant and
Spacenet addresses specific responsibilities for each party.
Q. IS A ROOF PENETRATION REQUIRED, HOW WILL I MAINTAIN MY ROOF WARRANTY?
A. Roof penetrations are not used for Spacenet VSAT installations. All
cables are brought into the building through existing penetrations or new
penetrations in an outside wall.
Q. HOW LONG WILL THE INSTALLATION TAKE:
A. In general, it takes 2-4 hours to complete the installation and
activation of the VSAT.
BUILDING OWNER AND LANDLORD INFORMATION GUIDE
EXHIBIT D
COMMENCEMENT DATE AGREEMENT
(SUITE 100 PREMISES - TWO PARAGON CENTRE)
This Commencement Date Agreement (this "AGREEMENT") is made and entered
into this ____ day of , 2003, by and between PARAGON CENTRE ASSOCIATES, LLC
("LANDLORD") and TEXAS ROADHOUSE HOLDINGS LLC ("TENANT").
WHEREAS, Landlord and Tenant entered into that certain Amended and Restated
Lease (the "TWO PARAGON CENTRE LEASE") dated ________________, 2003, with
respect to certain premises located at Two Paragon Centre, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, as such demised premises are more particularly described
in the Lease.
WHEREAS, this Agreement is executed by Landlord and Tenant to confirm the
Commencement Date for the Suite 100 Premises and the Expiration Date, as those
terms are defined in the Lease;
NOW, THEREFORE, for and in consideration of the demised premises and the
mutual covenants expressed in the Lease, it is hereby agreed by Landlord and
Tenant as follows:
1. The Premises were substantially complete and the Base Rent and
Additional Rent (as such terms are defined in the Lease) commenced on
__________________, 200__ (the "COMMENCEMENT DATE") and will expire on March 31,
2011 (the "EXPIRATION DATE").
2. As of the Commencement Date for the Suite 100 Premises, Base Rent
for the entire Premises shall be as follows:
Base Rent Per Base Rent Base Rent
Months of Term Rentable Square Foot Annually Monthly
-------------- -------------------- -------- -------
$ 16.25
$ 16.75
$ 17.75
$ 17.75
* Totals shown may reflect partial years.
3. Except as otherwise provided herein, this Agreement shall not be
deemed or construed to alter or amend the Lease in any manner.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Agreement to be
executed as of the day and year first above written.
TENANT: LANDLORD:
TEXAS ROADHOUSE HOLDINGS LLC, PARAGON CENTRE ASSOCIATES, LLC, a
Kentucky limited liability company Georgia limited liability company
By: WKT Restaurant Corp., a Kentucky By: Brookdale Investors Two, L.P.,
corporation, its Manager a Delaware limited partnership, as
Managing Member
By:
-----------------------------
Name: By: Brookdale Partners II, LLC, a
--------------------------- Georgia limited liability company,
Title: its sole General Partner
--------------------------
By:
--------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
EXHIBIT E
WORK LETTER AGREEMENT
(SUITES 100, 120, 130 AND 140)
Tenant hereby accepts the Premises "As Is" and acknowledges and agrees Landlord
shall have no obligation to construct any tenant improvements to the Premises or
made any alterations or additions thereto, except that Landlord agrees to
provide Tenant the Tenant Improvement Allowance as set forth herein to cover a
portion of the costs associated with the improvements to the Premises. Tenant
shall construct the tenant improvements to the Premises in accordance with this
EXHIBIT E. The following provisions shall govern (A) the preparation and
approval process for the drawings and specifications for the improvements to the
Premises, which Tenant shall perform in accordance with the terms of this
EXHIBIT E, and (B) terms and conditions relating to contractors and
subcontractors in connection with the improvements to the Premises.
A. TENANT'S WORK. Tenant shall be responsible for all work, construction
and installation in the Premises. Such work shall hereinafter be referred to as
"Tenant's Work" and shall be at Tenant's sole cost and expense, except as
provided below.
B. TENANT ALLOWANCE. Landlord agrees to provide to Tenant an allowance
with respect to the Suite 100 Premises, the ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Premises, and Suite 140 Premises of $15.00 per rentable square foot (the "Tenant
Improvement Allowance") (i.e., a total of 9,723 sf x $15.00 prsf = $145,845.00)
for leasehold improvements to the Premises. Fifty percent (50%) of the Tenant
Improvement Allowance for each suite must be applied to the Tenant's Work for
that particular suite or for other suites leased by Tenant at Two Paragon Centre
or One Paragon Centre. If the foregoing condition is satisfied, up to fifty
percent (50%) of the Tenant Improvement Allowance (i.e. $72,922.50) may be
applied to the cost of space planning, architectural and mechanical drawings,
Tenant's cabling, furniture, fixtures and equipment, moving-related expenses and
the like, for the Premises or any of Tenant's premises at One Paragon Centre.
The portion of the Tenant Improvement Allowance allocable to a particular
suite in the Premises (an a per square foot basis) shall be disbursed by
Landlord to Tenant within ten (10) days after the later to occur of (i)
execution by and delivery of this Lease to both Landlord and Tenant; or (ii) the
date Landlord delivers possession of such suite to Tenant. Upon completion of
Tenant's Work for each suite, Tenant shall promptly deliver to Landlord final
and unconditional lien waivers for Tenant's Work and copies of paid invoices
evidencing the cost of all of Tenant's Work. Any unused portion of the Tenant
Improvement Allowance shall be retained by Landlord.
To the extent that the cost of Tenant's Work exceeds the Tenant Improvement
Allowance, Tenant shall be fully responsible for payment of the same and shall
provide evidence of payment thereof to Landlord.
C. TENANT'S SPACE PLANS. Tenant shall submit to Landlord for Landlord's
approval a space plan for the improvements to the Premises ("Tenant's Space
Plans") prepared by Tenant's architect showing the interior layout of the
Premises and its integration with Building systems, core areas and the building
shell improvements in sufficient detail to permit Landlord a reasonable
opportunity to review and provide preliminary approval or comments regarding
Tenant's proposed interior design. Landlord shall review and approve or
disapprove of Tenant's Space Plans within ten (10) business days of Landlord's
receipt thereof, which approval shall not be unreasonably withheld, conditioned
or delayed. If Landlord disapproves, either in whole or in part, of Tenant's
Space Plans, Landlord shall provide to Tenant with reasonable specificity
Landlord's reasons for its disapproval. Tenant shall promptly correct or
otherwise address all disapproved items identified by Landlord. The revised
final plans are referred to as "Final Plans".
D. TENANT'S CONTRACTOR; CONSTRUCTION. Tenant shall have the right to
retain its own contractor(s) or subcontractor(s) to perform Tenant's Work and
its telephone, security and cabling within the Premises at Tenant's sole cost
and expense, subject to application of the Tenant Improvement Allowance. Such
contractor(s) must be approved, in its reasonable discretion, by Landlord's
property manager, which shall serve as construction manager ("Construction
Manager") and such contractor must be licensed and insured in the State of
Kentucky and must comply with all Building construction rules and regulations
required by the Construction Manager. Landlord hereby approves Buffalo
Construction, Inc. as a contractor without further action required on the part
of Tenant. Following the preparation and approval of the Final Plans and the
working drawings, Tenant shall construct the improvements to the Premises
according to the Final Plans and in a good and workmanlike manner in compliance
with Landlord's reasonable rules regarding construction in the Building.
Construction Manager shall review and approve the construction bid provided by
Tenant's contractor prior to any Tenant's Work commencing. On behalf of
Landlord, the Construction Manager shall supervise the construction of the
Premises. Tenant shall reimburse Landlord from the Tenant Improvement Allowance
for Landlord's actual out-of-pocket costs in connection therewith.
E. PERMITS, COMPLIANCE WITH LAWS. Tenant shall be responsible for
applying for and obtaining all permits required for Tenant to perform Tenant's
Work or to operate within the Premises, including without limitation, building
permits, the final certificate of occupancy or its equivalent, and for obtaining
the final fire inspection approval after installation of its fixtures, furniture
and equipment and for obtaining any other required inspections and approvals,
and shall provide Landlord with a copy of all such permits, approvals and
certificates of occupancy. The Final Plans shall comply with all applicable
local, state and federal laws, ordinances, codes and regulations. Tenant's
architect shall certify to Landlord and Tenant that the Final Plans comply with
the Americans with Disabilities Act of 1990 and all other applicable local,
state and federal laws, ordinances, codes and regulations.
F. SUBSTANTIAL COMPLETION. For purposes of this Lease, substantially
complete means full completion, except for minor or insubstantial details of
construction, decoration or installation.
G. NO LIABILITY. Notwithstanding the review and approval by Landlord of
Tenant's Space Plans, the Final Plans and specifications, Landlord shall have no
responsibility or liability in regard to the safety, sufficiency, adequacy or
legality thereof and Tenant shall be solely responsible for the compliance of
such plans and specifications (and
improvement constructed as a result thereof) with all applicable laws and
regulations, the architectural completeness and sufficiency thereof and other
matters relating thereto.
H. INSURANCE. Tenant shall secure, pay for, and maintain, or cause its
contractors and subcontractors to secure, pay for, and maintain, during the
continuance of construction and fixturing work within the Premises, all of the
insurance policies required in the amounts as set forth herein, together with
such insurance as may from time to time be required by city, county, state or
federal laws, codes, regulations or authorities. Tenant shall not commence, nor
may it permit its contractors and subcontractors to commence any work, until all
required insurance has been obtained, and, if Landlord requests, until Tenant's
certificates of such insurance have been delivered to Landlord. Tenant's
insurance policies shall name the Landlord, Landlord's mortgagee(s), if any, and
Construction Manager, as additional insureds. Tenant's certificates of insurance
shall provide that no change or cancellation of such insurance coverage shall be
undertaken without thirty (30) days prior written notice to Landlord. Landlord
shall have the right to require Tenant, and Tenant shall have the duty, to stop
work in the Premises immediately if any of the coverage Tenant is required to
carry herein lapses during the course of the work, in which event Tenant's Work
may not be resumed until the required insurance is obtained and satisfactory
evidence of same is provided to Landlord.
Tenant shall purchase, or cause to be purchased, General Contractor's and
Subcontractor's Required Minimum Coverages and Limits of Liability as follows:
(i) Worker's Compensation, as required by state law, and
Employer's Liability Insurance with a limit of not less than $2,000,000.00 (or
more if required by the law of the State) and any insurance required by any
Employee Benefit Act or similar statute applicable where the work is to be
performed, as will protect the contractor and subcontractors from any and all
liability under the aforementioned act(s) or similar statute;
(ii) Commercial General Liability Insurance (including Contractor's
Protective Liability) in an amount not less than $2,000,000.00 per occurrence
whether involving personal injury liability (or death resulting therefrom) or
property damage liability or a combination thereof (combined single limit
coverage) with a minimum aggregate limit of $2,000,000.00. Such insurance shall
include explosion, collapse and underground coverage. Such insurance shall
insure each party's general contractor against any and all claims for personal
injury, death, and damage to the property of others arising from its operations
under its contract, whether such operations are performed by such party's
contractors, subcontractors, or sub-subcontractors, or by anyone directly or
indirectly employed by any of them; and
(iii) Comprehensive Automotive Liability Insurance, for the
ownership, maintenance, or operation of any automotive equipment, whether owned,
leased, or otherwise held, including employer's non-ownership and hired
automobile liability endorsements, in an amount not less than $2,000,000.00 per
occurrence and $2,000,000.00 aggregate, combined single limit bodily injury and
property damage liability.
Such insurance policies shall insure Tenant's general contractor and all
subcontractors against any and all claims for bodily injury, including death
resulting therefrom, and damage to the property of others arising from its
operations under its contract in connection with construction of the Premises,
whether performed by Tenant's general contractor, subcontractors, or
sub-subcontractors, or by anyone directly or indirectly employed by any of them.
E-2
EXHIBIT E-1
WORK LETTER AGREEMENT
SUITE 400 PREMISES
Tenant hereby accepts the Suite 400 Premises "AS IS" and acknowledges and agrees
Landlord shall have no obligation to construct any tenant improvements to the
Suite 400 Premises or make any alterations or additions thereto and Landlord
shall have no obligation to provide any tenant improvement allowance, rent
abatement, credit, set-off, or other concession to Tenant. Notwithstanding the
foregoing, Landlord agrees to provide an allowance to Tenant for refurbishment
of the Suite 400 Premises of $5.00 per rentable square foot of space (i.e.,
$80,115.00) (the "Refurbishment Allowance"). All refurbishment and other
alterations to the Suite 400 Premises shall be performed by Tenant in accordance
with Article 6 of the Lease.
The Refurbishment Allowance shall be paid by Landlord to Tenant within ten (10)
days after the execution and delivery of this Lease to Landlord and Tenant. Up
to fifty percent (50%) of the Refurbishment Allowance may be utilized for other
expenses of Tenant in connection with this Lease or the One Paragon Centre
Lease, including cabling, furniture, equipment, and the like, provided that
Tenant agrees that at least fifty percent (50%) of the Refurbishment Allowance
shall be spent on the refurbishment of the Premises which are the subject of
this Lease or the One Paragon Centre Lease, and Tenant shall provide Landlord
with evidence of the same promptly upon completion of its improvements to the
Premises and the premises under the One Paragon Center Lease.
EXHIBIT F
BUILDING RULES AND REGULATIONS
1. Sidewalks, doorways, vestibules, halls, stairways, and other similar areas
shall not be used for the disposal of trash, be obstructed by Tenant or be used
by Tenant for any purpose other than ingress and egress to and from the Premises
and for going from one part of the Building to another part of the Building.
2. Plumbing fixtures and appliances shall be used only for the purposes for
which designed, and no sweepings, rubbish, rags, or other unsuitable material
shall be thrown or placed therein. Damage resulting to any such fixtures or
appliances from misuse by Tenant shall be paid by such Tenant and Landlord shall
not in any case be responsible therefor.
3. Signs, advertisements, or notices visible in or from public corridors or from
outside the Building shall be subject to Landlord's prior written approval.
Without Landlord's prior consent, no nails, hooks, or screws shall be driven or
inserted into any part of the Building, and no curtains or other window
treatments shall be placed between the glass and the Building standard window
treatments.
4. With respect to work being performed by Tenant in the Premises, Tenant shall
refer all contractors, contractors' representatives, and installation
technicians rendering any service to Tenant to Landlord for Landlord's
supervision and approval before the performance of any contractual services.
This provision shall apply to all work performed in the Building, including, but
not limited to, installations of telephones, telegraph equipment, electrical
devices and attachments, and any and all installations of every nature affecting
floors, walls, woodwork, trim, windows, ceilings, equipment, and other physical
portions of the Building.
5. Movement in or out of the Building of furniture, office equipment, safes and
other heavy equipment, or the dispatch or receipt by Tenant of any bulky
material or merchandise, or materials which require use of elevators or
stairways or movement through the Building entrances or lobby, shall be
restricted to such hours as Landlord designates. All such movement shall be
under the supervision of Landlord and in the manner agreed between Tenant and
Landlord by prearrangement before performance. Such prearrangement, to be
initiated by Tenant, will include determination by Landlord as to the time,
method, and routing of such movement and as to limitations for safety or other
concerns. Tenant assumes all risks of damage to articles moved and injury to
persons engaged or not engaged in such movement. Tenant shall be liable to
personnel of Landlord damaged or injured as a result of acts in connection with
carrying out this service for Tenant, and Landlord shall not be liable for the
acts of any person engaged in, or any damage or loss to any property or persons
resulting from any act in connection with, such service performed for Tenant.
6. Building management shall have the right and authority to prescribe the
maximum weight and position of safes and other heavy equipment which may
overstress any portion of a floor. All damages done to the Building by taking in
or putting out any property of Tenant, or done by Tenant's property while in the
Building, shall be repaired at the expense of Tenant.
7. Corridor doors, when not in use, shall be kept closed.
8. Tenant space visible from a public area must be kept neat and clean.
9. Should Tenant require telegraphic, telephonic, annunciator, or other
communication services, Landlord will direct the electricians as to where and
how wires are to be introduced and placed, and none shall be introduced or
placed except as Landlord shall direct. Electric current shall not be used for
power or heating without Landlord's prior written permission.
10. No animals shall be brought into or kept in, on, or about the Building.
11. All routine deliveries to the Premises during 8:00 a.m. to 5:00 p.m.
weekdays shall be made through the freight elevators. Passenger elevators are to
be used only for the movement of persons, unless an exception is approved by the
Building management office.
12. All freight elevator lobbies are to be kept neat and clean. The disposal of
trash or storage of materials in these areas by Tenant is prohibited.
13. Tenant shall not tamper with or attempt to adjust temperature control
thermostats in the Premises. Landlord shall adjust thermostats as required to
maintain the Building standard temperature. Landlord requests that all window
blinds remain down and tilted at a 45 degree angle toward the street to help
maintain comfortable room temperatures and conserve energy.
14. Tenant will comply with all security procedures during business hours and
after hours and on weekends.
15. Tenants are requested to lock all office doors leading to corridors and to
turn out all lights at the close of their working day.
16. All requests for overtime air conditioning or heating must be submitted in
writing to the Building management office by 4:00 p.m. on the preceding business
day.
17. No flammable or explosive fluids or materials shall be kept or used within
the Building except in areas approved by Landlord, and Tenant shall comply with
all applicable building and fire codes relating thereto.
18. Tenant may not place any items on the balconies of the Building without
obtaining Landlord's prior written consent.
19. No smoking shall be permitted in the Premises. Smoking shall only be
permitted in areas expressly designated by Landlord from time to time.
20. Landlord reserves the right to rescind any of these rules and regulations
and to make such other and further rules and regulations as in its good faith
judgment shall from time to time be needed for the safety, protection, care and
cleanliness
F-1
of the Property, the operation thereof, the preservation of good order therein,
and the protection and comfort of the tenants and their agents, employees, and
invitees, which rules and regulations, when made and written notice thereof is
given to Tenant, shall be binding upon Tenant in like manner as if originally
herein prescribed.
G-2
EXHIBIT G
FORM OF SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
This Subordination, Non-Disturbance and Attornment Agreement (this
"AGREEMENT") dated __________________________________, 2003, is made among TEXAS
ROADHOUSE HOLDINGS LLC, a Kentucky limited liability company ("TENANT"), PARAGON
CENTRE ASSOCIATES, LLC, a Georgia limited liability company ("LANDLORD"), and
BANK OF AMERICA, N.A., a national banking association ("MORTGAGEE")
WHEREAS, Mortgagee is the owner of a promissory or deed of trust note
(herein, as it may have been or may be from time to time renewed, extended,
amended, supplemented, or restated, called the "NOTE") executed by Landlord
payable to the order of Mortgagee, bearing interest and payable as therein
provided, secured by, among other things, a Deed of Trust, Assignment and
Security Agreement (herein, as it may have been or may be from time to time
renewed, extended, amended or supplemented, called the "MORTGAGE"), recorded or
to be recorded in the land records of Jefferson County, Kentucky, covering,
among other property, the land (the "LAND") described in EXHIBIT "A" which is
attached hereto and incorporated herein by reference, and the improvements
("IMPROVEMENTS") thereon (such Land and Improvements being herein together
called the "PROPERTY");
WHEREAS, Tenant is the tenant under a lease from Landlord dated August ___,
2003 (herein, as it may from time to time be renewed, extended, amended or
supplemented, called the "LEASE"), covering a portion of the Property (said
portion being herein referred to as the "PREMISES"); and
WHEREAS, the term "Landlord" as used herein means the present landlord
under the Lease or, if the landlord's interest is transferred in any manner, the
successor(s) or assign(s) occupying the position of landlord under the Lease at
the time in question.
NOW, THEREFORE, in consideration of the mutual agreements herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. SUBORDINATION. Tenant agrees and covenants that the Lease and the
rights of Tenant thereunder, all of Tenant's right, title and interest in and to
the property covered by the Lease, and any lease thereafter executed by Tenant
covering any part of the Property, are and shall be subject, subordinate and
inferior to (a) the Mortgage and the rights of Mortgagee thereunder, and all
right, title and interest of Mortgagee in the Property, and (b) all other
security documents now or hereafter securing payment of any indebtedness of the
Landlord (or any prior landlord) to Mortgagee which cover or affect the Property
(the "Security Documents"). This Agreement is not intended and shall not be
construed to subordinate the Lease to any mortgage, deed of trust or other
security document other than those referred to in the preceding sentence,
securing the indebtedness to Mortgagee.
2. NON-DISTURBANCE. Mortgagee agrees that so long as the Lease is in
full force and effect and Tenant is not in default in the payment of rent,
additional rent or other payments or in the performance of any of the other
terms, covenants or conditions of the Lease on Tenant's part to be performed
(beyond the period, if any, specified in the Lease within which Tenant may cure
such default),
(a) Tenant's possession of the Premises under the Lease shall not
be disturbed or interfered with by Mortgagee in the exercise of any of its
foreclosure rights under the Mortgage, or conveyance in lieu of
foreclosure, and
(b) Mortgagee will not join Tenant as a party defendant for the
purpose of terminating Tenant's interest and estate under the Lease in any
proceeding for foreclosure of the Mortgage.
3. ATTORNMENT.
(a) Tenant covenants and agrees that in the event of foreclosure
of the Mortgage, whether by power of sale or by court action, or upon a
transfer of the Property by conveyance in lieu of foreclosure (the
purchaser at foreclosure or the transferee in lieu of foreclosure,
including Mortgagee if it is such purchaser or transferee, being herein
called "NEW OWNER"), Tenant shall attorn to the New Owner as Tenant's new
landlord, and agrees that the Lease shall continue in full force and effect
as a direct lease between Tenant and New Owner upon all of the terms,
covenants, conditions and agreements set forth in the Lease and this
Agreement, except for provisions which are impossible for New Owner to
perform; provided, however, that in no event shall the New Owner be:
(i) liable for any act, omission, default,
misrepresentation, or breach of warranty, of any previous landlord
(including Landlord) or obligations accruing prior to New Owner's actual
ownership of the Property;
(ii) subject to any offset, defense, claim or counterclaim
which Tenant might be entitled to assert against any previous landlord
(including Landlord);
(iii) bound by any payment of rent, additional rent or other
payments, made by Tenant to any previous landlord (including Landlord) for
more than one (1) month in advance;
(iv) bound by any amendment, or modification of the Lease
hereafter made, or consent, or acquiescence by any previous landlord
(including Landlord) under the Lease to any assignment or sublease
hereafter granted, without the written consent of Mortgagee; or
(v) liable for any deposit that Tenant may have given to
any previous landlord (including Landlord) which has not, as such, been
transferred to New Owner.
G-1
(b) The provisions of this Agreement regarding attornment
by Tenant shall be self-operative and effective without the necessity of
execution of any new lease or other document on the part of any party
hereto or the respective heirs, legal representatives, successors or
assigns of any such party. Tenant agrees, however, to execute and deliver
upon the request of New Owner, any instrument or certificate which in the
reasonable judgment of New Owner may be necessary or appropriate to
evidence such attornment, including a new lease of the Premises on the same
terms and conditions as the Lease for the unexpired term of the Lease.
4. ESTOPPEL CERTIFICATE. Tenant agrees to execute and deliver from time
to time, upon the request of Landlord or of any holder(s) of any of the
indebtedness or obligations secured by the Mortgage, a certificate regarding the
status of the Lease, consisting of statements, if true (or if not, specifying
why not), (a) that the Lease is in full force and effect, (b) the date through
which rentals have been paid, (c) the date of the commencement of the term of
the Lease, (d) the nature of any amendments or modifications of the Lease, (e)
to the best of Tenant's knowledge no default, or state of facts which with the
passage of time or notice (or both) would constitute a default, exists under the
Lease, (f) to the best of Tenant's knowledge, no setoffs, recoupments,
estoppels, claims or counterclaims exist against Landlord, and (g) such other
matters as may be reasonably requested.
5. ACKNOWLEDGMENT AND AGREEMENT BY TENANT. Tenant acknowledges and
agrees as follows:
(a) Tenant acknowledges that Landlord will execute and deliver to
Mortgagee in connection with the financing of the Property. Tenant hereby
expressly consents to such assignment and agrees that such assignment
shall, in all respects, be superior to any interest Tenant has in the Lease
of the Property, subject to the provisions of this Agreement. Tenant will
not amend, alter or waive any provision of, or consent to the amendment,
alteration or waiver of any provision of the Lease without the prior
written consent of Mortgagee. Tenant shall not prepay any rents or other
sums due under the lease for more than one (1) month in advance of the due
date therefor. Tenant acknowledges that Mortgagee will rely upon this
instrument in connection with such financing.
(b) Mortgagee, in making any disbursements to Landlord, is under
no obligation or duty to oversee or direct the application of the proceeds
of such disbursements, and such proceeds may be used by Landlord for
purposes other than improvement of the Property.
(c) From and after the date hereof, in the event of any act or
omission by Landlord which would give Tenant the right, either immediately
or after the lapse of time, to terminate the Lease or to claim a partial or
total eviction, Tenant will not exercise any such right (i) until it has
given written notice of such act or omission to the Mortgagee; and (ii)
until the same period of time as is given to Landlord under the Lease to
cure such act or omission shall have elapsed following such giving of
notice to Mortgagee and following the time when Mortgagee shall have become
entitled under the Mortgage to remedy the same, but in any event 30 days
after receipt of such notice or such longer period of time as may be
necessary to cure or remedy such default, act, or omission including such
period of time necessary to obtain possession of the Property and
thereafter cure such default, act, or omission, during which period of time
Mortgagee shall be permitted to cure or remedy such default, act or
omission; provided, however, that Mortgagee shall have no duty or
obligation to cure or remedy any breach or default. It is specifically
agreed that Tenant shall not, as to Mortgagee, require cure of any such
default which is personal to Landlord, and therefore not susceptible to
cure by Mortgagee.
(d) In the event that Mortgagee notifies Tenant of a default under
the Mortgage, Note, or Security Documents and demands that Tenant pay its
rent and all other sums due under the Lease directly to Mortgagee, Tenant
shall honor such demand and pay the full amount of its rent and all other
sums due under the Lease directly to Mortgagee, without offset, or as
otherwise required pursuant to such notice beginning with the payment next
due after such notice of default, without inquiry as to whether a default
actually exists under the Mortgage, Security Documents or otherwise in
connection with the Note, and notwithstanding any contrary instructions of
or demands from Landlord.
(e) Tenant shall send a copy of any notice or statement under the
Lease to Mortgagee at the same time such notice or statement is sent to
Landlord if such notice or statement has a material impact on the economic
terms, operating covenants or duration of the Lease.
(f) Tenant has no right or option of any nature whatsoever,
whether pursuant to the Lease or otherwise, to purchase the Premises or the
Property, or any portion thereof or any interest therein, and to the extent
that Tenant has had, or hereafter acquires, any such right or option, same
is hereby acknowledged to be subject and subordinate to the Mortgage and is
hereby waived and released as against Mortgagee and New Owner.
(g) This Agreement satisfies any condition or requirement in the
Lease relating to the granting of a non-disturbance agreement and Tenant
waives any requirement to the contrary in the Lease.
(h) Mortgagee and any New Owner shall have no liability to Tenant
or any other party for any conflict between the provisions of the Lease and
the provisions of any other lease affecting the Property, including, but
not limited to, any provisions relating to exclusive or non-conforming uses
or rights, renewal options and options to expand, and in the event of such
a conflict, Tenant shall have no right to cancel the Lease or take any
other remedial action against Mortgagee or New Owner, or against any other
party for which Mortgagee or any New Owner would be liable.
(i) Mortgagee and any New Owner shall have no obligation nor incur
any liability with respect to the erection or completion of the
improvements in which the Premises are located or for completion of the
Premises or any improvements for Tenant's use and occupancy, either at the
commencement of the term of the Lease or upon any renewal or extension
thereof or upon the addition of additional space, pursuant to any expansion
rights contained in the Lease.
(j) Mortgagee and any New Owner shall have no obligation nor incur
any liability with respect to any
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warranties of any nature whatsoever, whether pursuant to the Lease or
otherwise, including, without limitation, any warranties respecting use,
compliance with zoning, Landlord's title, Landlord's authority,
habitability, fitness for purpose or possession.
(k) In the event that Mortgagee or any New Owner shall acquire
title to the Premises or the Property, Mortgagee or such New Owner shall
have no obligation, nor incur any liability, beyond Mortgagee's or New
Owner's then equity interest, if any, in the Property or the Premises, and
Tenant shall look exclusively to such equity interest of Mortgagee or New
Owner, if any, for the payment and discharge of any obligations imposed
upon Mortgagee or New Owner hereunder or under the Lease or for recovery of
any judgment from Mortgagee, or New Owner, and in no event shall Mortgagee,
New Owner, nor any of their respective officers, directors, shareholders,
agents, representatives, servants, employees or partners ever be personally
liable for such judgment.
(l) Tenant has never permitted, and will not permit, the
generation, treatment, storage or disposal of any hazardous substance as
defined under federal, state, or local law, on the Premises or Property
except for such substances of a type and only in a quantity normally used
in connection with the occupancy or operation of buildings (such as
non-flammable cleaning fluids and supplies normally used in the day to day
operation of first class establishments similar to the Improvements), which
substances are being held, stored, and used in strict compliance with
federal, state, and local laws. Tenant shall be solely responsible for and
shall reimburse and indemnify Landlord, New Owner or Mortgagee, as
applicable, for any loss, liability, claim or expense, including without
limitation, cleanup and all other expenses, including, without limitation,
legal fees that Landlord, New Owner or Mortgagee, as applicable, may incur
by reason of Tenant's violation of the requirements of this Paragraph 5(l).
6. ACKNOWLEDGMENT AND AGREEMENT BY LANDLORD. Landlord, as landlord
under the Lease and grantor under the Mortgage, acknowledges and agrees for
itself and its heirs, representatives, successors and assigns, that: (a) this
Agreement does not constitute a waiver by Mortgagee of any of its rights under
the Mortgage, Note, or Security Documents, or in any way release Landlord from
its obligations to comply with the terms, provisions, conditions, covenants,
agreements and clauses of the Mortgage, Note, or Security Documents; (b) the
provisions of the Mortgage, Note, or Security Documents remain in full force and
effect and must be complied with by Landlord; and (c) Tenant is hereby
authorized to pay its rent and all other sums due under the Lease directly to
Mortgagee upon receipt of a notice as set forth in paragraph 5(d) above from
Mortgagee and that Tenant is not obligated to inquire as to whether a default
actually exists under the Mortgage, Security Documents or otherwise in
connection with the Note. Landlord hereby releases and discharges Tenant of and
from any liability to Landlord resulting from Tenant's payment to Mortgagee in
accordance with this Agreement. Landlord represents and warrants to Mortgagee
that a true and complete copy of the Lease has been delivered by Landlord to
Mortgagee.
7. LEASE STATUS. Landlord and Tenant certify to Mortgagee that neither
Landlord nor Tenant has knowledge of any default on the part of the other under
the Lease, that the Lease is bona fide and contains all of the agreements of the
parties thereto with respect to the letting of the Premises and that all of the
agreements and provisions therein contained are in full force and effect.
8. NOTICES. All notices, requests, consents, demands and other
communications required or which any party desires to give hereunder shall be in
writing and shall be deemed sufficiently given or furnished if delivered by
personal delivery, by telegram, telex, or facsimile, by expedited delivery
service with proof of delivery, or by registered or certified United States
mail, postage prepaid, at the addresses specified at the end of this Agreement
(unless changed by similar notice in writing given by the particular party whose
address is to be changed). Any such notice or communication shall be deemed to
have been given either at the time of personal delivery or, in the case of
delivery service or mail, as of the date of first attempted delivery at the
address and in the manner provided herein, or, in the case of telegram, telex or
facsimile, upon receipt. Notwithstanding the foregoing, no notice of change of
address shall be effective except upon receipt. This Paragraph 8 shall not be
construed in any way to affect or impair any waiver of notice or demand provided
in this Agreement or in the Lease or in any document evidencing, securing or
pertaining to the loan evidenced by the Note or to require giving of notice or
demand to or upon any person in any situation or for any reason.
9. MISCELLANEOUS.
(a) This Agreement supersedes any inconsistent provision of the
Lease.
(b) Nothing contained in this Agreement shall be construed to
derogate from or in any way impair, or affect the lien, security interest
or provisions of the Mortgage, Note, or Security Documents.
(c) This Agreement shall inure to the benefit of the parties
hereto, their respective successors and permitted assigns, and any New
Owner, and its heirs, personal representatives, successors and assigns;
provided, however, that in the event of the assignment or transfer of the
interest of Mortgagee, all obligations and liabilities of the assigning
Mortgagee under this Agreement shall terminate, and thereupon all such
obligations and liabilities shall be the responsibility of the party to
whom Mortgagee's interest is assigned or transferred; and provided further
that the interest of Tenant under this Agreement may not be assigned or
transferred without the prior written consent of Mortgagee.
(d) THIS AGREEMENT AND ITS VALIDITY, ENFORCEMENT AND
INTERPRETATION SHALL BE GOVERNED BY THE LAWS OF THE STATE OF KENTUCKY AND
APPLICABLE UNITED STATES FEDERAL LAW EXCEPT ONLY TO THE EXTENT, IF ANY,
THAT THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED NECESSARILY
CONTROL.
(e) The words "herein", "hereof", "hereunder" and other similar
compounds of the word "here" as used in this Agreement refer to this entire
Agreement and not to any particular section or provision.
(f) This Agreement may not be modified orally or in any manner
other than by an agreement in writing signed by the parties hereto or their
respective successors in interest.
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(g) If any provision of the Agreement shall be held to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not apply to or affect any other provision hereof,
but this Agreement shall be construed as if such invalidity, illegibility,
or unenforceability did not exist.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and sealed as of the date first above written.
ADDRESS OF MORTGAGEE: MORTGAGEE:
--------------------------- BANK OF AMERICA, N.A.
---------------------------
--------------------------- By:
--------------------------- ----------------------------
Attention:----------------- Name:
--------------------------
Title:
-------------------------
STATE OF_______________
COUNTY OF______________
BE IT REMEMBERED, that on the ____ day of _______________, 2003, the
foregoing instrument was acknowledged before me, __________________, a Notary
Public in and for said County and State, by _____________________, the
____________ of Bank of America, N.A., on behalf of said national banking
association.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my
notarial seal on the day and year last aforesaid.
__________________________________
Notary Public
My Commission Expires:____________
ADDRESS OF TENANT: TENANT:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ TEXAS ROADHOUSE HOLDINGS LLC,
Suite 400 a Kentucky limited liability company
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. By: WKT Restaurant Corp., a Kentucky
Corporation, its Manager
By:
----------------------
Name:
--------------------
Title:
-------------------
STATE OF KENTUCKY
COUNTY OF JEFFERSON
BE IT REMEMBERED, that on the ____ day of _______________, 2003, the
foregoing instrument was acknowledged before me, __________________, a Notary
Public in and for said County and State, by _____________________, the
____________ of Texas Roadhouse Holdings LLC, on behalf of said limited
liability company
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my
notarial seal on the day and year last aforesaid.
__________________________________
Notary Public
My Commission Expires:____________
[Signatures continued on next page]
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[Signatures continued from previous page]
ADDRESS OF LANDLORD: LANDLORD:
c/o Brookdale Investors Two, L.P. PARAGON CENTRE ASSOCIATES, LLC,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. a Georgia limited liability company
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ By: Brookdale Investors Two, L.P., a
Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Delaware limited partnership, as
Managing Member
By: Brookdale Partners II, LLC, a
Georgia limited liability company,
its sole General Partner
By:
------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
STATE OF GEORGIA
COUNTY OF ▇▇▇▇▇▇
BE IT REMEMBERED, that on the ____ day of _______________, 2003, the
foregoing instrument was acknowledged before me, __________________, a Notary
Public in and for said County and State, by _____________________, the
____________ of Paragon Centre Associates, LLC, on behalf of said limited
liability company.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my
notarial seal on the day and year last aforesaid.
___________________________________
Notary Public
My Commission Expires:_____________
G-6
EXHIBIT "A"
LEGAL DESCRIPTION OF THE LAND
Being a portion of the tract conveyed to Louisville Dutchmans Lane Associates,
Ltd., as recorded in Deed Book 5533 Page 278, in the Office of the County Clerk
of Jefferson County, Kentucky; and more particularly described as follows:
BEGINNING at a pipe at the intersection of the southerly line of Dutchmans
Lane as established in instrument of record in Deed Book 1238 Page 397, in the
Office of the Clerk of the County Court of Jefferson County, Kentucky, thence
with the northwesterly line of the tract conveyed to Louisville Dutchmans Lane
Associates, Ltd. by Deed of record in Deed Book 5533 Page 278, in the Office of
the Clerk aforesaid; thence with the southerly line of Dutchmans Lane and with
an arc of a curve to the left having a radius of 216.33 feet and the following
chords:
South 66 degrees 19 minutes 48 seconds East 43.05 feet to an iron pipe; South 78
degrees 40 minutes 38 seconds East 50.00 feet to an iron pipe; North 88 degrees
03 minutes 02 seconds East 50.00 feet to an iron pipe; North 74 degrees 46
minutes 42 seconds East 50.00 feet to an iron pipe; North 61 degrees 30 minutes
22 seconds East 50.00 feet to an iron pipe; thence continuing with the
southeasterly line of Dutchmans Lane, North 54 degrees 52 minutes 12 seconds
East 46.50 feet to an iron pipe in the southwesternmost corner of the tract
conveyed to Louisville OPC Associates, Ltd. by Deed of record in Deed Book 5559
Page 255; thence with the most pipe; southwesterly line of said tract South 35
degrees 07 minutes 48 seconds East 31.00 feet to an iron thence South 46 degrees
11 minutes 52 seconds East 112.93 feet to an iron pipe; thence with an arc of a
curve to the left having a radius of 867.00 feet, and a chord of South 48
degrees 27 minutes 20 seconds East 118.26 feet to an iron pipe; thence with the
arc of a curve to the right having a radius of 12.00 feet and a chord of South
06 degrees 36 minutes 16 seconds East 17.20 feet; thence South 39 degrees 09
minutes 26 seconds West 18.32 feet to an iron pipe; South 50 degrees 50 minutes
34 seconds East 24.00 feet to an iron pipe; North 84 degrees 09 minutes 25
seconds East 62.44 feet to an iron pipe; thence with the arc of a curve to the
right having a radius of 11.00 feet, and a chord of South 73 degrees 20 minutes
26 seconds East 8.43 feet; thence the following courses and distances: South 50
degrees 50 minutes 16 seconds East 5.34 feet to an iron pipe; South 05 degrees
50 minutes 34 seconds East 34.25 feet to an iron pipe; South 47 degrees 17
minutes 46 seconds East 243.59 feet to an iron pipe on the west line of
right-of-way for ▇▇▇▇▇▇▇▇▇ Expressway I-264, said point also being on the
southeasternmost line of the tract conveyed to Louisville OPC Associates, Ltd.
as recorded in Deed Book 5559 Page 255 in aforementioned clerks office; thence
along West right-of-way line of ▇▇▇▇▇▇▇▇▇ Expressway I-264, South 59 degrees 37
minutes 00 seconds West 389.94 feet to an iron pipe; thence leaving the existing
right-of-way of ▇▇▇▇▇▇▇▇▇ Expressway I-264, with the following courses, North 33
degrees 22 minutes 13 seconds West 701.67 feet to the POINT OF BEGINNING
containing approximately 4.410 acres.
EXCEPTING THEREFROM that certain parcel conveyed to the Commonwealth of Kentucky
by Deed of Conveyance dated June 28, 1989, and recorded in Deed Book 5876 Page
97 in the Office of the Clerk of the County Court of Jefferson County, Kentucky,
and further described as follows:
BEGINNING at a point in the existing access control and right of way line, said
point being the Grantor's east property corner, 38.00 feet left of I-264 Station
606+52.59; thence with said existing access control and right of way line and
the Grantor's southeast property line South 60 degrees 51 minutes 23 seconds
West (Grantor's Survey South 59 degrees 37 minutes 00 second West), 389.94 feet
to the Grantor's south property corner 38.00 feet left of I-264 Station
602+62.65; thence with the Grantor's southwest property line North 32 degrees 07
minutes 50 seconds West (Grantor's Survey North 33 degrees 22 minutes 13 seconds
West), 98.13 feet to a point in the proposed access control and right of way
line 136.00 feet left of I-264 Station 602+57.54; thence with said proposed
access control and right of way line the following courses: South 89 degrees 45
minutes 09 seconds East, 77.43 feet to a point 98.00 feet left of I-264 Station
603+25.00; North 60 degrees 15 minutes 12 seconds East, 308.38 feet to a point
in the Grantor's northeast property line 101.25 feet left of I-264 Station
606+33.36; thence with said northeast property line South 46 degrees 03 minutes
23 seconds East (Grantor's Survey South 47 degrees 17 minutes 46 seconds East),
66.11 feet to the point of beginning containing approximately 0.567 acre.