Exhibit 10.12
LEASE AGREEMENT
This Lease Agreement (the "Lease") is made and entered into as of the _____
day of November, 1999, by and between TEAS II, LLC ("Landlord") and LONGVIEW
ROADHOUSE, LLC ("Tenant").
Landlord and Tenant previously entered into a Lease Agreement dated
July 14, 1999 (the "Prior Lease"). Landlord and Tenant hereby wish to terminate
the Prior Lease and enter into this Lease upon the terms and conditions set
forth herein.
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 in Longview, Texas.
ARTICLE II
TERM
2.1 TERM. The initial term (the "Initial Term") of this Lease shall
commence as of the date hereof (the "Commencement Date") and shall end fifteen
years from the date hereof (the "Termination Date"). Upon written notice to
Landlord given at least ninety (90) days prior to the Termination Date, and
subject to the provisions of Article III, Tenant shall have the right to renew
this Lease on at least as favorable terms as contained herein for an additional
five (5) year term (the "First Renewal Term"). Upon written notice to the
Landlord given at least ninety (90) days prior to the termination of the First
Renewal Term, and subject to the provisions of Article III, Tenant shall have
the right to renew this Lease on at least as favorable terms as contained herein
for a second additional term of five (5) years (the "Second Renewal Term").
2.2 ACCEPTANCE OF PREMISES. Tenant hereby accepts the Premises for
occupancy in its current "as is" condition and acknowledged that the Premises
are satisfactory and in conformity with the provisions of this Lease.
2.3 TIME OF RENTAL PAYMENTS. The first rentals due under this Lease
shall be payable in advance for any partial calendar month of occupancy on a
prorated basis and thereafter on the first day of each calendar month in
advance. Rental for a final partial calendar month of the Lease shall also be
prorated.
ARTICLE III
RENT AND REBATES
3.1 BASE RENT. Tenant shall pay to Landlord, as minimum guaranteed
rental (the "Base Rent") during the Initial Term the following amounts:
(a) YEARS ONE (1) THROUGH FIVE (5). Commencing on the first (1st)
day of the commencement of the Initial Term of this Lease, the annual Base Rent
shall be an amount equal to 110% of the total first month's payment (the
"Initial Loan Payment") for all loans obtained by Landlord for the purpose of
the purchase of real estate and construction of the Premises (the "Loans"). For
the purposes of determining the Base Rent, the amount of the Initial Loan
Payment shall be determined by assuming level monthly payments over a twenty
year period.
(b) YEARS SIX (6) THROUGH TEN (10). Base Rent shall be increased
by 5% at the beginning of the sixth year of the Initial Term.
(c) YEARS ELEVEN (11) THROUGH FIFTEEN (15). Commencing at the
beginning of the eleventh year of the Initial Term, and continuing through the
last day of the Initial Term hereof, the annual Base Rent shall be an amount
equal to the annual Base Rent during first year of the Initial Term, increased
by an amount equal to the increase in the cost of living from three (3) months
prior to the Commencement Date of this Lease until three (3) months prior to the
end of tenth year of the Initial Term hereof, as reflected in the Consumer Price
Index For All Items and Major Group Figures For All Urban Consumers published by
the Bureau of Labor Statistics, US Department of Labor ("Index"), payable by
Tenant to Landlord in equal monthly installments. Notwithstanding the foregoing,
the maximum increase in the rent between the Commencement Date and the eleventh
year of the Initial Term shall not exceed 20%.
(d) YEARS SIXTEEN (16) THROUGH TWENTY (20). Commencing on the
first (1st) day of the First Renewal Term hereof and continuing through the last
day of the First Renewal Term hereof, the annual Base Rent shall be an amount
equal to the annual Base Rent during the last year of the Initial Term,
increased by an amount equal to the increase in the cost of living from three
(3) months prior to the beginning of the eleventh year of the Initial Term until
three (3) months prior to the end of the Initial Term, as reflected in the
Index, payable by Tenant to Landlord in equal monthly installments.
Notwithstanding the foregoing, the maximum increase in the rent between the
eleventh year of the Initial Term and the first year of the First Renewal Term
shall not exceed 10%.
(e) YEARS TWENTY-ONE (21) THROUGH TWENTY-FIVE (25). Commencing on
the first (1st) day of the Second Renewal Term hereof and continuing through the
last day of the Second Renewal Term hereof, the annual Base Rent shall be an
amount equal to the annual Base Rent during the First Renewal Term, increased by
an amount equal to the increase in the cost of living from three (3) months
prior to the date of commencement of the First Renewal Term until three (3)
months prior to the end of the First Renewal Term, as reflected in the Index,
payable by Tenant to Landlord in equal monthly installments. Notwithstanding the
foregoing, the maximum
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increase in the rent between the beginning of the First Renewal Term and the
beginning of the Second Renewal Term shall not exceed 10%.
(f) SUCCESSOR INDEX. If there is no Consumer Price Index for All
Items and Major Group Figures For All Urban Consumers published by the Bureau of
Labor Statistics, US Department of Labor, at the times referred to above, then
the most-nearly comparable successor, or if no successor exists, then the most
reasonably comparable other index then being published, shall constitute, and be
used as, the "Index" for purposes of this Lease.
3.2 ADDITIONAL RENT. During the Initial Term and any additional Renewal
Terms of this Lease, Tenant shall also pay to Landlord Additional Rent as
provided in Article VI. Additional Rent shall be payable as provided in Article
6.1(b).
3.3 PARTIAL MONTH. If Tenant occupies the Premises for less than an
entire month, Base Rent shall be prorated by multiplying the Base Rent amount by
the percentage determined by dividing the number of days of the month Tenant is
in possession of the Premises by the total number of days in the calendar month.
3.4 REBATES. Unless and until Tenant is acquired by a Texas Roadhouse
entity that is going public or a Texas Roadhouse entity with shares publicly
traded, at which such time payments made by Landlord to Tenant pursuant to this
Section 3.4 shall cease, Landlord shall pay to Tenant as a rebate (the "Rebate")
40% of the amount by which the Base Rent (less expenses incurred by Landlord in
connection with management of the Premises) exceeds the actual aggregate monthly
payments due under the Loans (the "Actual Loan Payments") for each month. Such
Rebates shall be paid by Landlord to Tenant in monthly installments due on the
15th calendar day of each month. For the purposes of this Section 3.4, if
Landlord enters into any refinancing arrangement, the Actual Loan Payments shall
not include any amount borrowed in excess of the outstanding principal balance
of the Loans prior to refinancing.
ARTICLE IV
INSURANCE; INDEMNIFICATION
4.1 FIRE AND HAZARD INSURANCE. Tenant, at Tenant's expense, shall obtain
and keep in force at all times during the Term of this Lease, or any Renewal
Terms, one or more policies of insurance covering loss or damage to the Premises
in the amount of the full replacement value thereof. Such policies shall provide
protection against all perils included within the classifications of fire,
extended coverage, vandalism, malicious mischief and special extended perils
(all risks) and shall name Landlord as an additional insured. To the extent
reasonably possible, Tenant shall increase such insurance from time to time
during the Term, or any Renewal Terms, to include such additional risks or
greater coverage of the risks set forth above as may be reasonably required by
Landlord's lenders.
4.2 LIABILITY INSURANCE. Tenant, at Tenant's expense, shall obtain and
keep in force at all times during the Term of this Lease, or any Renewal Terms,
one or more insurance policies of
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comprehensive public liability insurance insuring Landlord and Tenant against
all liability arising out of the ownership, use, occupancy, or maintenance of
the Premises, with policy limits of not less than $5,000,000.00 with respect to
injuries to, or death of, any persons on the Premises, or occurrences of any
property damage to third parties caused on the Premises, whether or not caused
by any of Tenant's employees, agents, representatives, guests or invitees.
4.3 OTHER INSURANCE. Tenant shall be responsible for obtaining, at
Tenant's expense, any business interruption insurance and insurance on the
equipment, inventory, merchandise, supplies and other property of Tenant on or
about the Premises as Tenant may deem advisable and, in all events, shall
include, without limitation, specific endorsements for full reimbursement of
Rent in the event of any such business interruption. Tenant, on its behalf and
on its insurers' behalf, hereby expressly waives any and all claims against
Landlord for loss or damage to Tenant's equipment, inventory, merchandise,
supplies and other property on or about the Premises due to fire, explosion,
windstorm, or any other casualty, or due to any other cause whatsoever,
regardless whether Tenant has procured insurance thereon and regardless of the
cause of such loss or damage, except as expressly provided in Section 7.2 below.
4.4 CERTIFICATES OF INSURANCE. Tenant shall deliver to Landlord copies
of the insurance policies required under Sections 4.1 and 4.2 hereof or
certificates evidencing the existence and amounts of such insurance with loss
payable clauses reasonably satisfactory to Landlord. No such policy shall be
cancelable or subject to reduction of coverage or other modification except
after 10 days' prior written notice to Landlord. Tenant shall, within 10 days
prior to the expiration of any policy, furnish Landlord with renewals or
"binders" thereof, or Landlord may order such insurance and charge the cost
thereof to Tenant, which amount shall be payable by Tenant to Landlord upon
demand of Landlord or the applicable insurance company.
4.5 WAIVER OF SUBROGATION. Landlord and Tenant each hereby waives any
and all rights of recovery against the other, or against the partners, officers,
managers, members, directors, employees, agents and representatives of the
other, for loss or damage to such waiving party or its property or the property
of others under its control, to the extent such damage or destruction is insured
against under any insurance policies in force at the time of such loss or
damage. The provisions of this Section 4.5 shall be effective during the Term
for so long as such provisions do not prohibit securing insurance coverage from
responsible insurance companies by either party after a good faith effort.
Landlord and Tenant shall give notice to applicable insurance carrier(s) that
the foregoing mutual waiver of subrogation is contained in this Lease and
attempt in good faith to cause its insurance policies with respect to the
Premises, and the property contained therein, to be endorsed to permit the
foregoing waiver of subrogation.
4.6 INDEMNIFICATION. Tenant shall indemnify Landlord and save and hold
Landlord harmless from and against any and all claims, actions, damages,
liabilities, and expenses in connection with loss of life, personal injury
and/or damage to property arising from, out of, or in connection with the
occupancy or use by Tenant of the Premises or any part thereof; PROVIDED,
HOWEVER, that this indemnification by Tenant shall not extend to acts of
negligence of Landlord, or Landlord's officers, managers, members, directors,
partners, employees, agents, or
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representatives, or to events or accidents which occur as a result of Landlord's
failure to perform its obligations under this Lease. In the event Landlord
shall, without any fault on its part, be made a party to any litigation
commenced by or against Tenant, or against Landlord as a result of any action or
inaction by Tenant in connection with the Premises, then Tenant shall protect
and hold Landlord harmless and shall pay all costs, expenses, and reasonable
attorneys fees incurred or paid by Landlord in connection with such litigation.
ARTICLE V
UTILITIES; MAINTENANCE, ALTERATIONS AND REPAIRS
5.1 UTILITIES. Tenant shall timely pay for all heat, water, sewer
service, gas, electricity, telephone and other utilities and services used in or
about the Premises, and all such utilities and services, as applicable, shall be
metered to the Premises in Tenant's name.
5.2 MAINTENANCE AND REPAIRS.
(a) TENANT'S GENERAL OBLIGATION TO MAINTAIN. Except as set forth
in Article XIV, Tenant, at Tenant's expense, shall maintain the Premises and all
additions thereto and improvements thereof in good repair and condition
throughout the Term and shall yield up the Premises upon the expiration or
sooner termination of this Lease in broom clean condition and in as good and
tenantable condition as the Premises were in at the beginning of the Term or at
the time later added to the Premises, as the case may be, normal wear and tear
excepted.
(b) SPECIFIC MAINTENANCE OBLIGATIONS OF TENANT. In furtherance of,
and not by way of limitation of, Tenant's obligations under Section 5.2(a)
hereof, Tenant, at Tenant's expense, shall be responsible for all repairs,
replacements and maintenance required with respect to the Premises, including,
but not limited to, the repair and/or replacement of (i) any burst, stopped or
leaking water, gas, sewer or other pipes or plumbing fixtures or equipment,
(ii) any dysfunctional or malfunctioning lighting, electrical, or heating,
ventilation and air conditioning components, circuits, facilities or systems,
(iii) any fences, parking areas, sidewalks, driveways, landscaping and signs,
(iv) any sprinklers or other fire or smoke alarm or control devices and (v) any
foundations, structural components, exterior or interior walls and surfaces,
roofs, gutters, downspouts, ceilings, windows and doors.
(c) WAIVER OF LANDLORD LIABILITY. Landlord shall not be
responsible or liable to Tenant for any loss or damage resulting from any cause
whatsoever, including, but not limited to, any loss or damage from any burst,
stopped or leaking water, gas, sewer or other pipes or plumbing fixtures or
equipment, or from any failure of or defect in any lighting, electrical, or
heating, ventilation and air conditioning components, circuits, facilities or
systems.
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5.3 ALTERATIONS BY TENANT.
(a) NONSTRUCTURAL INTERIOR ALTERATIONS. Without obtaining
Landlord's consent, Tenant, at Tenant's expense, may during the Term of this
Lease, or any Renewal Term, make any interior alterations, additions, or
improvements to the Premises that do not affect the structural components of any
building or other improvement. Any such interior alteration, addition, or
improvement shall be made in a first class workmanship manner, and in accordance
with all valid requirements of municipal or other governmental authorities.
(b) STRUCTURAL ALTERATIONS. Tenant shall not make any structural
additions or other alterations to, nor remove or demolish, any building or other
improvement constituting a part of the Premises without the prior written
consent of Landlord, which shall not be unreasonably withheld.
(c) ALTERATIONS BECOME PART OF PREMISES. Tenant agrees that any
improvements or alterations to the Premises shall immediately become the
property of the Landlord and shall remain upon the Premises.
5.4 MECHANICS OR MATERIALMEN'S LIENS. Tenant shall not allow any
mechanic's, materialman's, or other liens to be filed against any part or all of
the Premises as a result of any act or omission by Tenant, provided however,
Tenant may contest, by appropriate proceedings, the amount, validity or
application of any mechanic's, materialman's, or other lien filed against any
part or all of the Premises so long as (i) no part of the Premises would be
subject to loss, sale or forfeiture before determination of such contest, (ii)
Landlord is not subject to any criminal penalty as a result of the failure to
pay such lien, and (iii) Tenant conducts all such contests, at Tenant's expense,
with due diligence and in good faith.
5.5 SIGNS AND OTHER TRADE FIXTURES. Tenant may install on the Premises
any and all racks, counters, tables, shelves, signage, and other trade fixtures
and equipment that might be necessary or desirable to the Tenant's use of the
Premises for permitted purposes (collectively, the "Trade Fixtures"). All such
Trade Fixtures shall be the property of Tenant, and, so long as Tenant is not in
default under this Lease, Tenant shall have the right to remove all or any part
of the Trade Fixtures from the Premises at any time during, or upon the
expiration or sooner termination of, the Term; provided, however, that Tenant
shall repair, or reimburse Landlord for the full costs of repairing, any damage
to the Premises resulting from the installation or removal of such Trade
Fixtures. It is specifically understood and agreed that all trademarks, trade
names, service marks, signs, and other marks of identification used by Tenant in
Tenant's business shall remain the exclusive property of Tenant, and Landlord
shall have no right, title, or interest in or to any of such trademarks, trade
names, service marks, signs, or other marks of identification.
5.6 LANDLORD'S RIGHT OF ENTRY. Landlord and Landlord's employees and
agent shall have the right to enter the Premises during reasonable hours and
upon reasonable notice to Tenant (or at any time with or without notice in the
event of any emergency) in order to (i) examine the Premises, or (ii) make such
repairs and alterations as may be necessary for the
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safety and preservation of the improvements on the Premises (the cost of which
repairs and alterations shall be borne by Tenant), but without any obligations
to make any such repairs.
ARTICLE VI
TAXES
6.1 ADDITIONAL RENT FOR REAL PROPERTY TAXES.
(a) TENANT OBLIGATION TO PAY REAL PROPERTY TAXES. As Additional
Rent, Tenant shall pay all Real Property Taxes (as defined below) applicable to
the Premises during the Term, or any Renewal Term, commencing with those due and
payable in calendar year 1999; provided, however, that the Real Property Taxes
for any year that are payable by Tenant shall be subject to a prorata adjustment
based upon the number of days of said year during which the Premises are leased
to Tenant. For all purposes of this Lease, the term "Real Property Taxes" shall
include any form of assessment, licensing, commercial rental tax, levy, penalty,
ad valorem tax, or other tax (other than income, inheritance and estate taxes)
imposed upon Landlord with respect to the Premises, or otherwise against or with
respect to the Premises, by any authority having the direct or indirect power to
tax, including any city, county, state or federal Government, and any school,
agricultural or other improvement district.
(b) NOTICE AND PAYMENT. Following receipt by Landlord of the then
current bills for Real Property Taxes due and payable in 1999 or later years
during the Term, or any Renewal Term, Landlord shall forward a copy thereof to
Tenant. Within 30 days after receipt of such notice from Landlord, Tenant shall
pay to Landlord any amount properly stated therein to be due (subject, however,
to the prorata adjustment for any partial year within the Term, or any Renewal
Term, as provided for under Section 6.1(a)).
6.2 PERSONAL PROPERTY TAXES. Tenant shall pay, prior to delinquency, all
taxes assessed against or with respect to any Trade Fixtures, furnishings,
equipment, or other personal property contained in the Premises. Any such taxes
payable by Landlord shall be treated and included as Real Property Taxes, and
shall be subject to the provisions of Section 6.1.
6.3 INCOME TAXES. Nothing in this Lease shall be construed as requiring
Tenant to pay (i) any municipal, state or Federal income taxes assessed against
Landlord, (ii) any municipal, state, or Federal capital, levy, estate,
succession, inheritance, or transfer taxes of Landlord, or (iii) any corporate
franchise taxes imposed upon any corporate owner of the Premises.
ARTICLE VII
INJURY TO PERSON OR PROPERTY
7.1 INDEMNITY BY TENANT. Tenant shall indemnify and hold harmless
Landlord for every demand, claim, cause of action, judgment, expense (including
court costs and attorney
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fees), loss or damages resulting from any injury or damage to the person or
property of Landlord where the injury or damage is caused by the negligence or
misconduct of Tenant, its agents, employees or members, or any other person
entering the Premises under express or implied invitation of Tenant, or that
results from Tenant's violation of laws, ordinances or governmental orders of
any kind.
7.2 INDEMNITY BY LANDLORD. Landlord shall indemnify and hold harmless
Tenant for every demand, claim, cause of action, judgment, expense (including
court costs and attorney fees), loss or damages resulting from any injury or
damage to the person or property of Tenant where the injury or damage is caused
by the negligence or misconduct of Landlord, its agents, employees or members,
or any other person entering the Premises under express or implied invitation of
Landlord, or that results from Landlord's violation of laws, ordinances or
governmental orders of any kind.
ARTICLE VIII
ASSIGNMENT AND SUBLETTING
8.1 ASSIGNMENT. This Lease may be assigned, pledged, mortgaged,
encumbered or transferred by either party to another party.
8.2 SUBLETTING. Tenant may sublet all or any part of the Premises
without Landlord's consent.
8.3 TENANT'S OBLIGATION SHALL CONTINUE. Any assignment or subletting
that is permitted under this Article VIII shall in no way release or relieve
Tenant of its obligations under this Lease.
ARTICLE IX
SURRENDER
9.1 SURRENDER. Upon termination of this Lease, Tenant shall surrender to
Landlord the Premises in substantially the same condition as Tenant was bound to
maintain under this Lease. Upon surrender, all leasehold improvements and
remaining fixtures and improvements made by Tenant shall become the property of
Landlord, other than trade fixtures, which remain the property of Tenant.
Payment by 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 Tenant prior to the payment and receipt of such monies.
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ARTICLE X
DAMAGE BY FIRE OR OTHER CASUALTY
10.1 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
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.
10.2 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
Tenant. Such abatement shall commence on the first day of the casualty and
extend until five (5) days following the completion of repairs.
ARTICLE XI
TRANSFERS BY LANDLORD
11.1 SALES, CONVEYANCE AND ASSIGNMENT. Nothing in this Lease shall
restrict the right of Landlord to assign this Lease or sell, transfer or convey
its interest in the Building and the Premises are a part, or any part thereof.
ARTICLE XII
NOTICES AND ACKNOWLEDGMENTS
12.1 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 in accordance with this Section 12.1:
To Landlord: TEAS II, LLC
00 Xxxxxxxxx Xxxx
Xxxxxxxx Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxx
To Tenant: Longview Roadhouse, LLC
000 Xxxx Xxxx 000
Xxxxxxxx, Xxxxx 00000
Attention: Manager
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A request, notice, approval, consent or communication given in accordance with
this Section 12.1 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.
ARTICLE XIII
DEFAULT
13.1 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 does not timely pay the Rent or any other amounts
payable hereunder; and such failure to pay continues for seven (7) calendar days
following receipt of written notice from Landlord; or
(b) Tenant neglects or fails to perform any of the other covenants
and provisions contained in this Lease and Tenant fails to remedy the same or to
begin to remedy the same within fifteen (15) calendar days following receipt of
written notice from Landlord, unless a longer correction period is granted by
Landlord in the written notice, provided that Tenant proceeds with due diligence
to complete such cure and informs Landlord of actions taken to initiate such
cure within the specified time period; or
(c) Tenant (1) is adjudicated bankrupt or insolvent, (2) files a
petition for bankruptcy or for reorganization under the Bankruptcy Act as now or
in the future may be amended, or (3) assigns its properties for the benefit of
creditors, except as is normally required in debt financing instruments; or
In the event of a default by Tenant under this Section 13.1, Tenant shall remain
directly and primarily liable for all payments to be made pursuant to Articles
III, IV, V and VI of this Agreement for the remaining term of the Lease.
13.2 LANDLORD RIGHTS. If one (1) or more of such events in Article 13.1
occur, Landlord shall have the right, 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, relet the demised Premises or any part thereof for the
account of Tenant, and receive and collect the rent therefor. In any case, and
whether or not the demised Premises or any part thereof is relet, Tenant shall
pay to Landlord all sums required to be paid by Tenant up to the time of reentry
by Landlord, and pay to 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.
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13.3 CONDITIONS OF DEFAULT BY LANDLORD. 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 Landlord fails to remedy the
same or to begin to remedy the same within fifteen (15) calendar days following
receipt of written notice by Tenant unless a longer correction period is granted
by Tenant in the written notice, provided that Landlord proceeds with due
diligence to complete such cure and informs Tenant of actions taken to initiate
such cure within the specified time period.
13.4 TENANT'S RIGHTS. If an event as described in Article 13.3 occurs,
Tenant shall have the right, 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 Landlord.
ARTICLE XIV
EMINENT DOMAIN
14.1 If the whole or substantially all of the Premises, or all or
substantially all of the means of access thereto, is acquired by eminent domain
or by purchase in lieu thereof, so that the Premises cannot be operated for its
intended use, this Lease shall terminate as of the date of the taking. In the
event only a portion of the Premises are so taken or condemned, so as not to
materially and adversely effect Tenant's use of the Premises, this Lease shall
continue in full force; PROVIDED, HOWEVER, that the Rent payable under the
unexpired Term of this Lease shall be adjusted to such extent as may be fair and
reasonable under the circumstances. Landlord shall, in such event, promptly
restore the Premises as nearly as feasible to the condition of the Premises
immediately prior to the taking, subject to reasonable delays, but Landlord
shall not be required to restore or rebuild the Premises during the last two (2)
years of the Term of this Lease; PROVIDED, FURTHER, that if Landlord elects not
to restore or rebuild the Premises, Tenant shall have the option to terminate
this Lease upon written notice delivered to Landlord. In the event of a total or
partial taking of the Premises, Landlord and Tenant shall have such rights to
the condemnation awards as are provided for under the laws governing such
taking, and shall be entitled to such portion of the proceeds, if any, as are
provided for by such laws.
ARTICLE XV
MISCELLANEOUS
15.1 APPLICABLE LAW AND CONSTRUCTION OF LEASE. This Lease shall be
governed by and under the laws of the State of Texas, 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 Landlord
or 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.
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15.2 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.
15.3 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. This Lease, in its entirety, may be
changed, amended or otherwise modified by mutual consent of the parties hereto.
15.4 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 Landlord or Tenant unless a waiver is in writing signed by Landlord or
Tenant.
15.5 ENTIRE AGREEMENT. This Lease, as may be amended from time to time as
described herein, contains the entire agreement between the parties with respect
to the subject matter of this Lease. This Lease is effective and binding upon
the parties and supersedes any other lease that may exist between them.
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Lease Agreement,
effective as of the date first written above, and by the signatures signed
below.
LANDLORD: TENANT:
TEAS II, LLC LONGVIEW ROADHOUSE, LLC
By:/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, its Manager Xxxxxx X. Xxxxx, its Manager
EXHIBIT A
All that certain lot, tract or parcel of land being 1.677 acre of land located
in the P.P. Rains Survey, A-258, City of Longview, Xxxxx County, Texas. Said
1.677 acre of land being a part of a 5.165 acre tract conveyed to T. Xxxx Xxxx,
Xxxxxxx Xxxx and Xxxx Xxxxx by deed recorded in Volume 1325, Page 266, Deed
Records of said county, said 1.677 acre tract being a part of a 5.165 acre tract
conveyed to Xxxx Xxxx Xxxxx and Xxxxx Xxxxxxx Xxxxx, described by deed recorded
in Volume 1522, Page 230 of said Deed Records, and also being a part of a 5.165
acre tract conveyed to Xxxxx Xxxxx by deed recorded in Volume 1964, Page 155,
Public Official Records of said county, said 1.677 acre tract being more
particularly described as follows:
BEGINNING at a 3/8" iron rod found on the north boundary line of said 5.165 acre
tract and the south right of way line of State Highway Loop 281, said rod being
the northwest corner of a 0.550 acre tract, conveyed to Xxxxxx Xxxxx by deed
recorded in Volume 1634, Page 377, of said Public Official Records, said rod
being N 80 deg. 04'00E, 253.46 feet along the west boundary line of said 0.550
acre tract to a 3/8" iron rod found for the southwest corner of same, said rod
being on the south boundary line of said 5.165 acre tract and the north boundary
line of a tract of land conveyed to Xxx X. Xxxxxxx described by deed recorded in
Volume 1508, Page 463 of said Deed Records;
THENCE S 84 deg. 35'20"W, 189.65 feet along the south boundary line of said acre
tract and successively with the north boundary lines of said Xxxxxx tract, a
0.41 acre tract conveyed to Xxxxxx Xxxxxxx described by deed recorded in Volume
1556, Page 89, said Deed records, and the north boundary line of a 0.38 acre
tract conveyed to X.X. Xxxxxx described by deed recorded in Volume 812, Page 369
of said Deed Records to a 1/2" iron rod found, said rod being the northeast
corner of a 3.78 acre tract conveyed to Xxxxxx X. Xxxxx described by deed
recorded in Volume 1332, Page 63 of said Deed Records;
THENCE S 89 deg. 06'55W, 73.50 feet along the south boundary line of said 5.165
acre tract and the north boundary line of said 3.78 acre tract to a 1/2" iron
rod set, said rod being N 89 deg. 06'55"E, 314.02 feet from a 3/8" iron found
for the southeast corner of the Austin Bank 1.28 acre tract according to the
deed of records in Volume 2718, Page 453, Public Official Records of said
County;
THENCE N 01 deg. 36'56"W, 296.92 feet across said 5.165 acre tract to a 1/2"
iron rod set on the south right of way line of said highway and being on the
north boundary line of said 5.165 acre tract, said rod being S 85 deg. 37'01"E,
315.72 feet from a 1/2" iron rod found for the northeast corner of said Austin
State Bank tract;
THENCE S 85 deg. 37'01"E, 214.07 feet along the north boundary line of said
5.165 acre tract and the south right of way line of said highway to a broken
highway monument found, said monument being 135 feet right of Engineer's
Centerline Station 241+00;
THENCE S 80 deg. 24'20"E, 48.77 feet along the north boundary line of said 5.165
acre tract and the south right of way line of said highway to the POINT OF
BEGINNING and containing 1.677 acre of land, more or less.
EXHIBIT B
LEASE RIDER
This Lease Rider is made and entered into this _____ day of November, 1999
by and between Texas Roadhouse Development Corporation, a Kentucky corporation
("Franchisor"). Longview Roadhouse, LLC ("Franchisee") and ______ ("Landlord").
WHEREAS, Franchisor and Franchisee are parties to that certain Franchise
Agreement dated November ___, 1999 ("Franchise Agreement");
WHEREAS, Franchisee and Landlord desire to enter into a lease (the "Lease")
pursuant to which Franchisee will occupy the premises located at 000 Xxxx Xxxx
000, Xxxxxxxx, Xxxxx 00000 (the "Premises") for a full-service Texas Roadhouse
restaurant (the "Restaurant") licensed under the Franchise Agreement; and
WHEREAS, as a condition to entering into the Lease, the Franchisee is
required under the Franchise Agreement to execute this Lease Rider along with
the Landlord and Franchisor;
NOW, THEREFORE, in consideration of the mutual undertakings and commitments
set forth herein and in the Franchise Agreement, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
(1) During the term of the Franchise Agreement, the Premises shall be
used only for the operation of the Restaurant.
(2) Landlord consents to Franchisee's use of such marks and signs,
decor items, color schemes and related components of the Texas Roadhouse
restaurant system as Franchisor may prescribe for the Restaurant.
(3) Landlord agrees to furnish Franchisor with copies of any and all
letters and notices sent to Franchisee pertaining to the Lease and the Premises,
at the same time that such letters and notices are sent to Franchisee.
(4) Franchisor shall have the right to enter the Premises to make any
modification or alteration necessary to protect the Texas Roadhouse restaurant
system and marks. Franchisor shall also have the right, but not the obligation
to cure any default under the Franchise Agreement or any development agreement
entered into between Franchisor and Franchisee or under the Lease, without being
guilty of trespass or any other crime or tort.
(5) Franchisee shall be permitted to assign the Lease to Franchisor or
its affiliates upon the expiration or earlier termination of the Franchise
Agreement or upon Franchisor's purchase of Franchisee's assets under Section
XIV. of the Franchise Agreement, and the Landlord hereby consents to (and agrees
to provide written consent to) such assignment and agrees not to impose or
assess any assignment fee or similar charge or accelerate or increase rent under
the Lease in connection with such assignment.
(6) In the event of such assignment, Franchisor or any affiliate
designated by Franchisor will agree to assume from the date of assignment all
obligations of Franchisee remaining under the Lease, and in such event
Franchisor or any affiliate shall assume Franchisee's occupancy rights, and the
right to sublease the Premises, for the remainder of the term of the Lease.
(7) Franchisee shall not assign the Lease or renew or extend the term
thereof without the prior written consent of Franchisor.
(8) Landlord and Franchisee shall not amend or otherwise modify the
Lease in any manner that could materially affect any of the foregoing
requirements without the prior written consent of Franchisor.
(9) The terms of this Lease Rider will supersede my conflicting terms
of the Lease.
IN WITNESS WHEREOF, the parties have executed this Lease Rider as of the
date first above written.
FRANCHISOR:
Texas Roadhouse Development Corporation,
a Kentucky corporation
By: /s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx Xx, Chief Financial Officer
FRANCHISEE:
Longview Roadhouse, LLC
By: TEAS, Inc.
By: /s/ Xxxxx X. Xxxxx
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/s/ Xxxxxx Xxxxxxx Xxxxx Xxxxx
------------------ President
Witness
LANDLORD:
TEAS II INC.
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
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Title: President
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