Exhibit
10.17


TWO
PARAGON CENTRE


AMENDED
AND RESTATED LEASE AGREEMENT


BY
AND BETWEEN


PARAGON CENTRE HOLDINGS, LLC, AS LANDLORD AND


TEXAS ROADHOUSE HOLDINGS LLC, AS
TENANT


January 1, 2006









 



LEASE AGREEMENT


TABLE OF CONTENTS


	
  ARTICLE I.

  	
   

  	
  Basic Lease Provisions

  	
   

  	
  ARTICLE X.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Section 10.1

  	
   

  	
  Subordination

  
	
  ARTICLE II.

  	
   

  	
   

  	
   

  	
  Section 10.2

  	
   

  	
  Estoppel Certificate or Three-Party Agreement

  
	
  Section 2.1

  	
   

  	
  Premises

  	
   

  	
  Section 10.2

  	
   

  	
  Notices

  
	
  Section 2.2

  	
   

  	
  Term

  	
   

  	
   

  	
   

  	
   

  
	
  Section 2.3

  	
   

  	
  Use

  	
   

  	
  ARTICLE XI.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Section 11.1

  	
   

  	
  Right to Relocate Tenant

  
	
  ARTICLE III.

  	
   

  	
   

  	
   

  	
  Section 11.2

  	
   

  	
  Rights and Remedies Cumulative

  
	
  Section 3.1

  	
   

  	
  Rental Payments

  	
   

  	
  Section 11.3

  	
   

  	
  Legal Interpretation

  
	
  Section 3.2

  	
   

  	
  Additional Rent

  	
   

  	
  Section 11.4

  	
   

  	
  Tenant’s Authority

  
	
  Section 3.3

  	
   

  	
  Security Deposit

  	
   

  	
  Section 11.5

  	
   

  	
  No Brokers

  
	
   

  	
   

  	
   

  	
   

  	
  Section 11.6

  	
   

  	
  Consents by Landlord

  
	
  ARTICLE IV.

  	
   

  	
   

  	
   

  	
  Section 11.7

  	
   

  	
  Joint and Several Liability

  
	
  Section 4.1

  	
   

  	
  Services

  	
   

  	
  Section 11.8

  	
   

  	
  Independent Covenants

  
	
  Section 4.2

  	
   

  	
  Keys and Locks

  	
   

  	
  Section 11.9

  	
   

  	
  Attorneys’ Fees and Other Expenses

  
	
  Section 4.3

  	
   

  	
  Graphics and Building Directory

  	
   

  	
  Section 11.10

  	
   

  	
  Recording

  
	
  ARTICLE V.

  	
   

  	
   

  	
   

  	
  Section 11.11

  	
   

  	
  Disclaimer; Waiver of Jury Trial

  
	
  Section 5.1

  	
   

  	
  Occupancy of Premises

  	
   

  	
  Section 11.12

  	
   

  	
  No Access to Roof

  
	
  Section 5.2

  	
   

  	
  Entry for Repairs and Inspection

  	
   

  	
  Section 11.13

  	
   

  	
  Parking

  
	
  Section 5.3

  	
   

  	
  Hazardous Materials

  	
   

  	
  Section 11.14

  	
   

  	
  No Accord or Satisfaction

  
	
   

  	
   

  	
   

  	
   

  	
  Section 11.15

  	
   

  	
  Acceptance

  
	
  ARTICLE VI.

  	
   

  	
   

  	
   

  	
  Section 11.16

  	
   

  	
  Waiver of Counterclaim

  
	
  Section 6.1

  	
   

  	
  Leasehold Improvements

  	
   

  	
  Section 11.17

  	
   

  	
  Time Is of the Essence

  
	
  Section 6.2

  	
   

  	
  Repairs by Landlord

  	
   

  	
  Section 11.18

  	
   

  	
  Counterparts

  
	
  Section 6.3

  	
   

  	
  Repairs by Tenant

  	
   

  	
  Section 11.19

  	
   

  	
  Execution and Delivery of Lease

  
	
  Section 6.4

  	
   

  	
  Liens

  	
   

  	
  Section 11.20

  	
   

  	
  Real Estate Investment Trust

  
	
  Section 6.5

  	
   

  	
  Indemnification

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  EXHIBITS

  	
   

  	
   

  
	
  ARTICLE VII.

  	
   

  	
   

  	
   

  	
  Exhibit A

  	
   

  	
  Land

  
	
  Section 7.1

  	
   

  	
  Condemnation

  	
   

  	
  Exhibit B

  	
   

  	
  Floor Plan(s) of Premises

  
	
  Section 7.2

  	
   

  	
  Force Majeure

  	
   

  	
  Exhibit C

  	
   

  	
  Special Stipulations

  
	
  Section 7.3

  	
   

  	
  The or Other Casualty

  	
   

  	
  Exhibit D

  	
   

  	
  INTENTIONALLY OMITTED

  
	
  Section 7.4

  	
   

  	
  Insurance

  	
   

  	
  Exhibit E

  	
   

  	
  Work Letter Agreement

  
	
  Section 7.5

  	
   

  	
  Waiver of Subrogation Rights

  	
   

  	
  Exhibit F

  	
   

  	
  Building Rules and Regulations

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  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

  	
   

  	
   

  	
   

  	
   

  



 









 



AMENDED
AND RESTATED LEASE AGREEMENT


THIS AMENDED AND RESTATED LEASE AGREEMENT (this “Lease”)
is made and entered into as of the 1st day of January, 2006, by and between
PARAGON CENTRE HOLDINGS, LLC, a Kentucky limited liability company (“Landlord”),
whose address is 6060 Dutchmans Lane, Louisville, Kentucky 40205, and TEXAS
ROADHOUSE HOLDINGS LLC, a Kentucky limited liability company (“Tenant”),
whose address is 6040 Dutchmans Lane, Suite 200, Louisville, Kentucky 40205;
Attn: Sheila C. Brown, 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 August 15, 2003 by and between Tenant and Paragon Centre
Associates, LLC as assigned to Landlord pursuant to (i) that certain Assignment of Lease and Security Deposit, Assumption
Agreement dated January 28, 2004 by and between Paragon Centre Associates, LLC
and Landlord and Tenant’s Consent dated January 28, 2004 by and between
Landlord 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, (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 feet of Rentable Area (hereinafter
defined) situated upon the Land (hereinafter defined) commonly known as Two
Paragon Centre located at 6040 Dutchmans Lane, Louisville, Jefferson County,
Kentucky 40205, as the same currently exists or as it may from time to time
hereafter be expanded or modified.


Commencement Date
shall mean January 1, 2006.


Complex
shall mean the Project together with that certain office building known as One
Paragon Centre located at 6060 Dutchmans Lane, Louisville, Kentucky, 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 December 31, 2020.


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 46,746 square feet of Rentable
Area (as hereinafter defined) known as Suite 400 (16,023 square feet of
Rentable Area), Suite 100 (3,082 square feet of Rentable Area), Suite 110
(2,416 square feet of Rentable Area), Suite 120 (2,994 square feet of Rentable
Area), Suite 130 (2,313 square feet of Rentable Area), Suite 140 (1,334 square
feet of Rentable Area), Suite 150 (3,317 square feet of Rentable Area), Suite
200 (8,040 square feet of Rentable Area), Suite 300 (4,334 square feet of
Rentable Area), Suite 305 (1,488 square feet of Rentable Area), and Suite 310
(1,405 square feet of Rentable Area) on Floors 4, 1, 2, and 3 of the Building
(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
pro ration 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 









 



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
shall begin on the 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; provided however, that Tenant’s obligation to pay
Base Rent and Tenant’s Pro Rata Share of Operating Expenses (hereinafter
defined) for Suite 150 commences on March 1, 2006.


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, subject to Landlord
approval, 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 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 Premises shall be as follows:




	
  Term

  	
   

  	
  Premises

  	
   

  	
  Base Rent

  Per Rentable

  Square Foot

  	
   

  	
  Total

  Base Rent

  	
   

  	
  Base Rent

  Monthly

  	
   

  
	
  1/1/06—2/28/06

  	
   

  	
  400,
  100, 110, 120,

  130, 140, 200, 300,

  305, 310

  	
   

  	
  $                    17.54

  	
   

  	
  $        761,744.66

  	
   

  	
  $              63,478.72

  	
   

  
	
  3/1/06—12/31/06

  	
   

  	
  400,
  100, 110, 120,

  130, 140, 150, 200,

  300, 305, 310

  	
   

  	
  $                    17.54

  	
   

  	
  $        819,924.84

  	
   

  	
  $              68,327.07

  	
   

  
	
  1/1/07-12/31/15

  	
   

  	
  400,
  100, 110, 120,

  130, 140, 150, 200,

  300, 305, 310

  	
   

  	
  $                    18.34

  	
   

  	
  $        857,321.64

  	
   

  	
  $              71,443.47

  	
   

  
	
  1/1/16—12/31/20

  	
   

  	
  400, 100, 110, 120,

  130, 140, 150, 200,

  300, 305, 310

  	
   

  	
  95% Fair Market Rent (as
  defined in Exhibit C,

  Special Stipulations)

  	
   

  






 


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.


(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 non-usurious 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 non-usurious 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, 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 2005, 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 exceeds 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.


(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.  In the event that Tenant elects to provide
its own janitorial services to the Premises or any specific Suite within the Premises,
Landlord shall ensure that the Tenant’s Pro Rata Share of Operating Expenses is
appropriately credited for the amounts not expended by Landlord.


(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) watts 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) watts 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 by Landlord at Tenant’s sole cost and expense 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 there from; provided, however, Landlord
agrees to use diligent efforts to repair said equipment or machinery and to
restore said services.


(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
non-responsibility 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.


(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 indemnity 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 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. 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 Tenant Improvement Allowance (as that term is
defined in Exhibit E hereto) for the Suite 150 Premises, which shall be
disbursed in accordance with Exhibit E 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 (iv) 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 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 non-responsibility 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 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, 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.


(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
$2,000,000; 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 non-renewal 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 thus
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;


(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; or


(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.


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 re-enter 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 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 suits 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 there from 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 there from 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 there from, 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 non-action 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 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;  or (iv) the change in control in a
partnership. 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/l00 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.


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 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 this 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/ DWN

  	
   

  	
   

  	
  Tenant’s Initials:

  	
  /s/ sb

  	
   

  



 









 



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 use commercially reasonable efforts to obtain a Subordination,
Non-Disturbance and Attornment Agreement from its current mortgagee and any
future mortgagees, 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 (a) within ten (10)
days following request by Landlord, 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 fall 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 fill
force and effect without modification except as may be 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. Financial statements required to be delivered pursuant to Section
10.2(b) may be delivered electronically and if so delivered, shall be
deemed to have been delivered on the date that Tenant’s parent company posts
its consolidated financial statements, or provides a link thereto, on Tenant’s
website on the Internet at www.texasroadhouse.com. In the event that Tenant’s
parent company is no longer publicly traded or is no longer required to
publicly disclose its financial statements, then 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 Tenant will only be effective if copies thereof are simultaneously
sent to the attention of Tenant at 6040 Dutchmans Lane, Suite 200, Louisville,
Kentucky 40205, Attention: Sheila C. Brown, 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 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.


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 non-defaulting party all
expenses incurred by such party in enforcing any of its remedies for any such
default, and if the non-defaulting 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 non-defaulting 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 MERCHANTABIL1TY, 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. 5 of Exhibit C
attached hereto.


Section
11.13       Parking.
Tenant’s occupancy of the Premises shall initially include the use of up to one
hundred seventy-three (173) 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 allotted parking spaces shall be
increased based on the ratio set forth above upon each applicable Commencement
Date 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, aid 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 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 HOLDINGS, LLC, a Kentucky limited

  liability company

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/ David W. Nicklies

  
	
   

  	
   

  	
   

  	
   

  	
  David W. Nicklies, Manager

  
	
   

  	
   

  	
  Date: 3-20-06

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TENANT:

  
	
   

  	
   

  	
  TEXAS ROADHOUSE HOLDINGS LLC, a Kentucky limited

  liability company

  
	
   

  	
   

  	
  By:

  	
   

  	
  Texas Roadhouse, Inc., a Delaware corporation, its
  Manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/ Sheila C. Brown

  
	
   

  	
   

  	
  Title:

  	
   

  	
   Sheila C.
  Brown

  
	
   

  	
   

  	
   

  	
   

  	
  General Counsel, Corporate Secretary

  
	
   

  	
   

  	
  Date: March 3, 2006

  



 















 


EXHIBIT A


LEGAL
DESCRIPTION OF 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 southwestern most 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 Watterson
Expressway 1-264, said point also being on the southeastern most 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 Watterson Expressway 1-264,
South 59 degrees 37 minutes 00 seconds West 389.94 feet to an iron pipe; thence
leaving the existing right-of-way of Watterson Expressway 1-264, 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 1-264 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 sec6nds 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 1-264 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 1-264 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.









 



EXHIBIT
B

FLOORPLAN of PREMISES









 













 













 













 



















 


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 or leases for the
approximately 16,130 square feet of Rentable Area depicted on Exhibit C-1 attached
hereto (the “First Offer Spaces”), composed of Suites 220, 250, 315 and
320 during the first five (5) 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 all or
portions of the First Offer Spaces to Tenant as such space becomes available.


If within ten (10) business days after receipt of
Landlord’s notice, Tenant agrees in writing to lease portions of the First
Offer Spaces 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 or amendments
to this Lease adding the First Offer Spaces 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 all
or a portion the First Offer Spaces or elects not to lease all or a portion of
the First Offer Spaces within such 10 business-day period, then this right of
first offer to lease that portion of the First Offer Spaces will lapse and be
of no further effect and Landlord will have the right to lease that portion the
First Offer Spaces 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 Spaces 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 thee 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, 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. 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
Watterson 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.             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 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) detailed 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. 5.


(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.









 



EXHIBIT C-I


FIRST
OFFER SPACE


Two
Paragon Centre

SECOND FLOOR


Two Paragon Centre

THIRD FLOOR









 













 



















 


EXHIBIT
C-2


EQUIPMENT
(SATELLITE)


AGREEMENT
REGARDING SATELLITE ANTENNA


 ] THIS
AGREEMENT REGARDING SATELLITE ANTENNA (“Agreement”) is made this                    day of    , 2005, (the “Effective Date”), by and, between, Paragon
Centre Holdings, L.L.C., a Kentucky 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                                                                ,
2005, (“Lease”) for those premises located at 6040 Dutchmans Lane, Suites 400,
100, 110, 120, 130, 140, 200, 300, 305, 310 in Louisville, Kentucky (“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 “K” 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
undertaking (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 discretion) 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 6040 Dutchmans Lane, Louisville, Kentucky 40205 (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 requested 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
al non-monetary default.


7.             Tenant,
during the first nine months of this Agreement, shall pay Landlord as rent the
monthly sum of One Hundred Five and No/l00 Dollars ($105.00).
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 provided in Paragraph 8 hereof in connection with such removal
and/or repair.


IN WITNESS
WHEREOF, 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:

  	
   

  	
  Texas Roadhouse, Inc. its Manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/ Sheila C. Brown

  
	
   

  	
   

  	
  Title:

  	
  Sheila C. Brown

  
	
   

  	
   

  	
   

  	
  General Counsel, Corporate Secretary

  
							



 


	
  Signed and Acknowledged

  	
   

  	
  Landlord:

  
	
  in the Presence
  of:

  	
   

  	
  Paragon Centre Holdings, LLC

  
	
   

  	
   

  	
  a Kentucky limited liability company

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  /s/ David W. Nicklies

  
	
   

  	
   

  	
   

  	
  Title:

  	
  David W. Nicklies, Manager

  
								



 









 



EXHIBIT D


[INTENTIONALLY
OMITTED]









 



EXHIBIT E


WORK LETTER AGREEMENT

(Suite 150)


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 make 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 150 Premises, of $10.00 per rentable square foot (the “Tenant
Improvement Allowance”) (i.e., a total of 3,317 sf x $10.00 prsf =
$33,170.00) 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. If the foregoing condition is satisfied, up to fifty percent
(50%) of the Tenant Improvement
Allowance (i.e. $16,585.00) 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 Two Paragon Centre.


The Tenant Improvement Allowance shall be disbursed by
Landlord to Tenant within ten (10) days after the date Landlord delivers
possession of such suite to Tenant. Upon completion of Tenant’s Work for Suite
150, 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 constriction 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 hereof)
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 its 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 there from) 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 there from, 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.









 



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 he
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, annunciation, 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 theft 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 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.