Exhibit 10.13
LEASE AGREEMENT
This Lease Agreement (the "Lease") is made and entered into as of the 1st
day of April, 1997, by and between TEXAS ROADHOUSE OF ELIZABETHTOWN, LLC
("Landlord") and TEXAS ROADHOUSE HOLDINGS, LLC ("Tenant"), who agree as follows:
ARTICLE I
GRANT OF LEASE
1.1 GRANT OF LEASE. Landlord hereby demises and leases to Tenant, and
Tenant hereby leases and accepts from Landlord, those certain "Premises"
described on EXHIBIT "A" attached hereto, located at Elizabethtown, Kentucky.
ART1CLE II
TERM
2.1 TERM. The term (the "Term") of this Lease shall begin upon the 1st
day of April, 1997 (the "Commencement Date") and shall end on March 31, 2007
(the "Termination Date"). Unless Landlord has given ninety (90) days written
notice prior to the Termination Date, this Lease shall automatically renew on at
least as favorable terms as contained herein for an additional five (5) year
term (the "First Renewal Term"). Unless Landlord has given ninety (90) days
written notice prior to the termination of the First Renewal Term, this Lease
shall automatically renew on at least as favorable terms as contained herein for
a second additional term of five (5) years (the "Second Renewal Term"). Unless
Landlord has given ninety (90) days written notice prior to the termination of
the Second Renewal Term, the Lease shall automatically renew on at least as
favorable terms as contained herein for a third additional term of five (5)
years (the "Third Renewal Term").
ARTICLE III
RENTS
3.1. RENT. Tenant shall pay to Landlord as annual rent (the "Rent") for
the Premises, a base rent (the "Base Rent"), which shall be $146,400.00.
3.2 PARTIAL MONTH. There shall be no proration of Base Rent or
Additional Rent based upon occupancy by the Tenant for any period of time less
than a month unless agreed to by the Landlord at such time as partial occupancy
occurs.
ARTICLE IV
EXPENSES
4.1 EXPENSES. Tenant shall be responsible for paying the expenses
("Expenses") which result from its occupation of the Premises. Expenses shall
include the cost of ail utilities for the Premises, including, without
limitation, water, sewer, power, fuel, heating, lighting, air conditioning, and
ventilating; the cost of all insurance relating to the Premises, its occupancy
or operations; the cost of repairs and maintenance of the Premises, excluding
only such costs which are paid by the proceeds of insurance, or are paid wholly
by other than Landlord or Tenant to third parties; all taxes, including all
federal, state, and local government taxes, assessments, and charges of any kind
or nature, whether general, special, ordinary or extraordinary, paid by, imposed
upon, or assessed against Landlord or the Premises during each year of the Term
with respect to the ownership, management, operation, maintenance or repair of
the Premises, including all license and permit fees required to be paid in
connection with the operation and leasing of the Premises; and all other costs
and expenses which are reasonably necessary to the ownership, operation and
maintenance of the Premises.
4.2 DETERMINATION OF EXPENSES. The Expenses shall be the actual expenses
incurred during the year. The Landlord shall make available to the Tenant
records and other information as is reasonable and necessary to substantiate the
Expenses.
ARTICLE V
USE OF PREMISES
5.1 USE. The Premises shall be used by the Tenant as a Texas Roadhouse
restaurant, or for any other lawful use.
ARTICLE VI
SERVICES, MAINTENANCE, REPAIR AND ALTERATIONS
BY THE LANDLORD
6.1 GENERAL OPERATIONS. During the Term, Landlord shall operate and
maintain the Premises in accordance with all applicable laws and regulations.
6.2 SERVICES, MAINTENANCE AND REPAIR TO PREMISES. Landlord shall provide
in the Premises the heating, ventilation and air conditioning as required for
the comfortable use and occupancy of the Premises during normal business hours.
Tenant shall be responsible for any expenses associated with the repair and
maintenance of the heating, ventilation and air conditioning. Tenant shall be
responsible for the payment of any expenses associated with the operation,
repair,
2
maintenance and replacement of electrical, plumbing, mechanical and structural
systems, facilities, and equipment necessary for the proper operation of the
Premises.
6.3 OTHER SERVICES. The Landlord shall provide a suitable parking area
for Tenant's customers. Tenant shall maintain the parking area and shall arrange
for landscaping maintenance and other services as are necessary for the general
upkeep of the entry ways and exterior of the Premises.
6.4 ALTERATIONS BY LANDLORD. Landlord may make alterations or additions
to the Premises only with the express written consent of Tenant. Landlord shall
make reasonable efforts to plan alterations in a manner which minimizes the
disruption of the Tenant's use of and/or access to and from the Premises, and
shall promptly repair at Landlord's expense, any and all damages to the Premises
caused by such actions.
6.5 ACCESS BY THE LANDLORD. Tenant shall permit the Landlord to enter
the Premises outside or during normal business hours where such entry will not
unreasonably disturb or interfere with the Tenant's use of the Premises in order
to provide services, make repairs, changes or alterations as set out in this
Lease. Landlord agrees to schedule and provide as much reasonable notice to the
Tenant as possible prior to such entry.
ARTICLE VII
TAXES
7.1 TAXES. Tenant shall pay any and all real estate or personal property
taxes, license fees, assessments, and other fees, however described, that are
levied, imposed, charged or otherwise assessed to the Premises or which are
specifically assessed to the Tenant's operation of businesses conducted in the
Premises or personal property employed in the conduct of business.
7.2 RIGHT TO CONTEST. Both the Landlord and the Tenant have a right, in
good faith, to contest to the imposing authority, the validity or amount of any
tax, assessment, license fee, excise tax, or other charges which are identified
for payment under this Article VII, provided that such contest by either party
will not jeopardize the interest of the Landlord in the leased Premises. Upon
final determination of any contest, the Landlord or the Tenant, as the case may
be, shall immediately pay any amounts due including penalties and interest due.
ARTICLE VIII
INSURANCE
8.1 INSURANCE ON PREMISES. During the Term, Tenant shall maintain and
pay for liability insurance and fire insurance with extended coverages on the
Premises.
3
except, that Tenant shall have the right to remove any of its personal property.
Payment by the Tenant of any monies due after the termination of this Lease
shall not reinstate or continue the Term and shall not make ineffective any
notice given the Tenant prior to the payment and receipt of such monies.
ARTICLE XII
DAMAGE BY FIRE OR OTHER CASUALTY
12.1 DAMAGE TO PREMISES. If all or part of the Premises are rendered
untenable by damage from a fire or other casualty, then Tenant may elect to
terminate this Lease as of the date of such casualty by written notice to the
Landlord within thirty (30) days following the casualty. During any period in
which the leased Premises are wholly or substantially rendered untenable by
reason of fire or other casualty, the lease payments will be abated.
12.2 ABATEMENT OF RENT. If Tenant does not elect to terminate this Lease,
then during such time as repairs are being made, the rent shall be
proportionately abated for that portion of the Premises that are unusable by the
Tenant. Such abatement shall commence on the first day of the casualty and
extend until five (5) days following the completion of repairs.
12.3 MUTUAL RELEASE FROM LIABILITY FOR FIRE AND OTHER CASUALTY. Landlord
and Tenant release each other from any and all liability or responsibility (to
the other or anyone claiming through or under them by way of subrogation or
otherwise) under fire and extended coverage or supplemental casualty contracts,
if such fire or other casualties shall have been caused by the fault or
negligence of the other party, or anyone for whom such party may be responsible;
and the party shall use its best efforts to have included in its respective and
fire extended coverage insurance policies a waiver of subrogation rights against
the Landlord or Tenant as the case may be.
12.4 EMINENT DOMAIN.
(a) In the event that all or any portion of the Premises is taken
under the power of eminent domain by any competent authority, this Lease shall
terminate as to the part so taken as of the date on which Tenant is required to
yield possession thereof to the taking authority. If the taking of a portion of
the Premises is not a Substantial Portion, then Landlord shall make all repairs,
alterations and replacements as may be necessary in order to restore the portion
of the Premises not taken to useful condition and the Rent shall be reduced on
an equitable basis to take into account the elimination of the portion of the
Premises taken.
(b) If the taking of a portion of the Premises is a Substantial
Portion, then Tenant shall have the option to terminate this Lease as of the
date on which Tenant is required to yield possession of the portion taken to the
taking authority, which option shall be exercised by Tenant by written notice
delivered to the Landlord on or prior to such date. Unless this Lease is so
terminated, Landlord shall make all repairs, alterations and replacements as may
be necessary in
5
order to restore the portion of the Premises not taken to as useful a condition
as is practicable and the Rent shall be reduced on an equitable basis to take
into account the elimination of the portion of the Premises taken. For all
purposes of this Agreement, the term "Substantial Portion" means (i) any part of
the building on the Premises, (ii) 10% or more of the parking spaces on the
Premises, (iii) 15% or more of the land area demised as part of the Premises,
(iv) any property which affects the direct access from the Premises to any
adjacent street or highway, and (v) any portion of the land or improvements, the
absence of which is reasonably likely to have a substantial impact on the
business of Tenant conducted in, on, or from the Premises.
ARTICLE XIII
TRANSFERS BY LANDLORD
13.1 SALES, CONVEYANCE AND ASSIGNMENT. Nothing in this Lease shall
restrict the right of the Landlord to assign this Lease or sell, transfer or
convey its interest in and to the Building of which the Premises are a part, or
any part thereof, provided that such assignment, sale, transfer or conveyance
shall be subject to the rights of the Tenant under this Lease. This Lease shall
not be affected by such sale, assignment, transfer or conveyance.
ARTICLE XIV
NOTICES AND ACKNOWLEDGMENTS
14.1 NOTICES. Any notice from one (1) party to the other hereunder shall
be in writing and shall be deemed to have been duly served if delivered below,
or to such other address as may be designated by either Landlord or Tenant by
notice given from time to time in accordance with this Section 14.1:
To Landlord: Texas Roadhouse of Elizabethtown, LLC
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: W. Xxxx Xxxxxx
To Tenant: Texas Roadhouse Holdings, LLC
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: W. Xxxx Xxxxxx
A request, notice, approval, consent or communication given in accordance with
this Section 14.1 shall be deemed received (i) upon delivering it in person,
(ii) three days after depositing it in an office of the United States Postal
Service, or (iii) one day after giving it to a nationally recognized overnight
carrier.
6
ARTICLE XV
DEFAULT
15.1 CONDITIONS OF DEFAULT BY TENANT. The occurrence of one or more of
the following events (hereinafter referred to as "default") shall be deemed a
default under this Lease by Tenant:
(a) Tenant shall default in the timely payment of the Rent or any
other amounts payable hereunder; and such default shall continue for seven (7)
calendar days following receipt of written notice from the Landlord; or
(b) Tenant shall neglect or fail to perform any of the other
covenants and provisions herein contained and the Tenant shall fail to remedy
the same or begin to remedy the same within fifteen (15) calendar days following
receipt of written notice from the Landlord unless a longer correction period is
granted by the Landlord in the written notice, provided that the Tenant proceeds
with due diligence to complete such cure and informs the Landlord of actions
taken to initiate such cure within the specified time period; or
(c) Tenant shall [1] be adjudicated bankrupt or insolvent, [2]
file, or threaten to file, a petition for bankruptcy or for reorganization under
the Bankruptcy Act as now or in the future may be amended, or [3] initiate
actions to assign its properties for the benefit of creditors, except as is
normally required in debt financing instruments; or
(d) Tenant shall abandon the Premises.
15.2 LANDLORD RIGHTS. If one (1) or more of such events in Article 15.1
occur, the Landlord shall have the right, if such defaults continue after
providing such notices as are required, at its option and without limiting
itself in the exercise of any other right or remedy it may have on account of
such breach or default, and without any further demand or notice, reenter the
Premises with process of law, take possession of the Premises, improvements,
additions, alterations, equipment and fixtures thereon, and eject all parties in
possession as may be necessary. In such event, Landlord may, without terminating
this Lease, at any time and from time to lime, relet the demised Premises or any
part of parts thereof for the account of the Tenant, or otherwise, and receive
and collect the rent therefor. In any case, and whether or not the demised
Premises or any part thereof be relet, the Tenant shall pay to the Landlord all
sums required to be paid by the Tenant up to the time of reentry by the
Landlord, and pay to the Landlord until the end of the term of this Lease the
equivalent of the amount of all rent, less the proceeds of such reletting, if
any.
15.3 CONDITIONS OF DEFAULT BY LANDLORD. The Landlord shall be considered
to be in default under this Lease should Landlord neglect or fail to perform any
of its covenants and provisions herein contained and the Landlord shall fail to
remedy the same or begin to remedy the same within fifteen (15) calendar days
following receipt of written notice of the Tenant unless a longer correction
7
period is granted by the Tenant in the written notice, provided that the
Landlord proceeds with due diligence to complete such cure and informs the
Tenant of actions taken to initiate such cure within the specified time period.
15.4 TENANT'S RIGHTS. If an event as described in Article 15.3 occurs,
the Tenant shall have the right, if such defaults continue after providing such
notices as are required, at its option and without limiting itself in the
exercise of any other right or remedy it may have on account of such breach or
default, and without any further demand or notice, to terminate this Lease,
without any further obligation to the Landlord, whatsoever.
ARTICLE XVI
MISCELLANEOUS
16.1 APPLICABLE LAW AND CONSTRUCTION OF LEASE. This Lease shall be
governed by and under the laws of the Commonwealth of Kentucky, and its
provisions shall be constructed or modified in part or in whole in accordance
with the applicable law's common meaning and not strictly interpreted for or
against either the Landlord or the Tenant. Any change in applicable law shall
require only provisions of the Lease so affected to be modified and shall not
invalidate or nullify any of the other provisions contained herein. The captions
and arrangements of the paragraphs are for convenience only and have no effect
on the interpretation of the Lease.
16.2 SUCCESSORS BOUND. Except as otherwise provided, the covenants, terms
and conditions in this Lease shall apply to and bind the permitted successors
and assigns of the parties hereto.
16.3 AMENDMENT OR MODIFICATION. Unless otherwise specifically provided in
this Lease, no amendment, modification, addition by supplement or exhibit shall
be valid unless set out in writing and executed by the parties hereto in the
same manner as the execution of this Lease. Subject to the previous sentence,
this Lease, in its entirety, may be changed, amended or otherwise modified by
mutual consent of the parties hereto.
16.4 NO IMPLIED SURRENDER OR WAIVER. No provisions of this Lease shall,
even if not enforced or exercised from time to time, be deemed to have been
waived by the Landlord or Tenant unless a waiver is in writing signed by the
Landlord or Tenant.
16.5 ENTIRE AGREEMENT. This Lease, as may be amended from time to time as
described herein, contains the entire agreement between the parties hereto with
respect to the subject matter of this Lease. This Lease is effective and binding
upon the parties hereto and supersedes any other lease that may exist between
them.
8
IN WITNESS WHEREOF, the parties hereto have executed this Lease Agreement,
effective as of the date first written above, by affixing their corporate seals
by their authorized officers in their behalf, and by the signatures signed
below.
LANDLORD: TENANT:
TEXAS ROADHOUSE OF TEXAS ROADHOUSE HOLDINGS, LLC
ELIZABETHTOWN, LLC
By: WKT Restaurant Corp., its Manager
By: /s/ W. Xxxx Xxxxxx By: /s/ W. Xxxx Xxxxxx
---------------------------- ------------------------------
W. Xxxx Xxxxxx, its Manager W. Xxxx Xxxxxx, President
9
