MASTER LEASE AGREEMENT
This contract contains arbitration provisions and shall be
subject to arbitration under the Texas General Arbitration Act
(Article 224 et seq. Revised Civil Statutes of Texas)
THIS MASTER LEASE AGREEMENT is made and entered into as of September __,
1999, by and between FFP Properties, L.P., a Texas limited partnership
("Lessor"), and FFP Operating Partners, L.P., a Delaware limited partnership
("Lessee"), in order to terminate and supersede that certain Lease Agreement
dated August 4, 1999 and those certain Lease Agreements dated as of January 1,
1998, by and between Lessor and Lessee, including all previous amendments
thereto, covering the thirty-five (35) properties listed in Exhibit A attached
hereto and incorporated herein by reference (collectively, the "Prior Leases").
WHEREAS, the thirty-five (35) real properties listed in Exhibit A are
described with more particularity in Exhibit B attached hereto and incorporated
herein by reference; and
WHEREAS, Lessor and Lessee desire to continue the leasing of the subject
properties to Lessee pursuant to the provisions of this Master Lease Agreement
(this "Lease").
NOW, THEREFORE, it is agreed by and between Lessor and Lessee that the Prior
Leases are hereby terminated and superceded in all respects by this Master Lease
Agreement.
ARTICLE I
Premises
Section 1.01 Lessor, in consideration of the covenants and agreements to be
performed by Lessee and upon the terms and conditions hereinafter stated, does
hereby lease, demise, and let unto Lessee all the lands described on Exhibit B
attached hereto (the "Land"), together with all improvements, buildings, and
structures of Lessor, if any, situated on the Land (the "Improvements") and all
rights, easements, and appurtenances pertaining to the Land, including all
parking and access rights relating thereto (collectively with the Land and the
Improvements, the "Leased Premises").
ARTICLE II
Term and Adjustment to Monthly Rent
Section 2.01 Initial Term. The initial term of this Lease (the "Term") shall
be for a period commencing on January 1, 1998 (the "Commencement Date"), except
with respect to that certain property reflected in Exhibit A as location number
849, which term commenced on August 4, 1999, and ending on December 31, 2019.
Section 2.02 Adjustment to Monthly Rent. Commencing on the first (1st) day of
January in each of the years 2003, 2008, 2013, and 2018, the applicable rental
for each calendar month during each such incremental period shall be equal to
the Monthly Rent multiplied by the percentage of increase by which the Consumer
Price Index in the calendar month three (3) months preceding the first month of
each such period exceeds the Consumer Price Index in December 1997; provided,
however, that in no event shall such adjusted rental be less than the rental
payable during the initial Term. "Consumer Price Index" shall mean the Consumer
Price Index for Urban Wage Earners and Clerical Workers-All Items (Base Year
1967) of the United States Bureau of Labor Statistics. If the manner in which
such Consumer Price Index is determined by the Bureau of Labor Statistics shall
be substantially revised, an adjustment shall be made in such revised index
which would produce results equivalent, as nearly as possible, to those which
would have been obtained if the Consumer Price Index had not been revised. If
the Consumer Price Index shall become unavailable to the public because
publication is discontinued, or otherwise, Lessor will substitute therefor a
comparable index based upon changes in the cost of living or purchasing power of
the consumer dollar published by any other governmental agency or, if no such
index shall be available, then a comparable index published by a major bank or
other financial institution or by a recognized financial publication.
ARTICLE III
Use of Premises
Section 3.01 Permitted Uses. The Leased Premises shall be used for any lawful
use, including, but not limited to, the operation of the Leased Premises as a
convenience store, truck stop, and/or self-service gasoline station.
Section 3.02 Prohibited Uses. Lessee shall not perform any acts or carry on
any practices which may injure the Leased Premises or constitute a nuisance, or
use the Leased Premises for any business which is unlawful or in violation of
any public or city ordinances.
ARTICLE IV
Rent
Section 4.01 Rent Amount and Due Date. Lessee, without offset or deduction,
agrees to pay Lessor, at 2801 Glenda Avenue, Fort Worth, Texas, or such other
address as Lessor may designate, rent for the Leased Premises at the monthly
rate of Eighty-seven Thousand Two Hundred Twenty-three and No/100's Dollars
($87,223.00) ("Monthly Rent"), as adjusted in accordance with Section 2.02, in
advance on the first day of each and every calendar month during the Term of
this Lease, the first such payment becoming due and payable on the Commencement
Date. If the Commencement Date is other than the first day of a month or if the
term of the Lease terminates on a day other than the last day of the month, a
prorated monthly rental installment shall be paid.
Section 4.02 Delinquent Rent. All rental installments or payments (including
any amounts payable as additional rent) more than ten (10) days past due shall
subject Lessee to liability for payment of a late payment charge equal to five
percent (5.0%) of each such late monthly installment or payment.
Section 4.03 Net Lease. It is understood and agreed that this Lease is
intended to be a net lease. It is the intention of the parties that Lessor shall
receive the Monthly Rent hereunder free from all charges and expenses imposed
upon or by reason of the Leased Premises and the ownership thereof by Lessor.
Section 4.04 Lessee Remains Bound. Except as otherwise expressly provided
herein, this Lease shall not terminate, nor shall Lessee be entitled to any
abatement of rent or reduction thereof, nor shall the respective obligations of
Lessor and Lessee be otherwise affected by reason of damage to or destruction of
all or any portion of the Leased Premises, the condemnation of all or any part
thereof for use or otherwise, the prohibition of Lessee's use of all or any part
of same or the interference with such use, Lessee's acquisition of fee title to
the premises otherwise than pursuant to an express provision of this Lease, the
bankruptcy, insolvency, reorganization, composition, readjustment, liquidation,
dissolution, winding-up, reconstitution, or other proceeding affecting Lessor or
any assignee of Lessor, any action by any trustee or receiver of Lessor, any
assignee of Lessor or by any court, any default on the part of Lessor under this
Lease or under any other agreement to which Lessor and Lessee may be parties, or
for any other cause whether similar or dissimilar to the foregoing; any present
or future law to the contrary notwithstanding, it being the intention of the
parties hereto that the obligations of Lessee hereunder shall be separate
covenants and agreement, and that the Monthly Rent, additional rent, and all
other sums payable by Lessee hereunder shall continue to be payable in all
events and that the obligations of Lessee hereunder shall continue unaffected,
unless the obligation to pay or perform the same shall be terminated or modified
pursuant to the express provisions of this Lease. Lessee waives all rights which
may now or hereafter be conferred by law (i) to quit, terminate, or surrender
this Lease or the Leased Premises or any part thereof, or (ii) to any abatement,
suspension, deferment, or reduction of the Monthly Rent, additional rent, or any
other sums payable under this Lease, except as otherwise expressly provided
herein.
ARTICLE V
Possession of Premises
Section 5.01 Lessee acknowledges that Lessee has fully inspected the Leased
Premises and on the basis of such inspection Lessee hereby accepts the Leased
Premises "AS IS." Lessee acknowledges that the Improvements, if any, situated
thereon are suitable for the purposes for which the same are leased, in their
present condition.
ARTICLE V
Alteration, Operating Expenses,
Construction, and Ownership of
Improvements
Section 6.01 Alterations and Improvements. Lessee shall have the right to
make alterations to or construct improvements on the Leased Premises. Any
alteration or improvement made to the Leased Premises shall be made in a
workmanlike manner and in compliance with all valid laws, governmental orders,
and building ordinances and regulations pertaining thereto. Lessee shall
promptly pay and discharge all costs, expenses, damages, and other liabilities
which may arise in connection with or by reason of any alterations,
reconstruction, demolition, or other work on the Leased Premises. All
alterations, reconstruction, demolition, or other work on the Leased Premises
when completed shall be of such a nature as not to reduce or otherwise adversely
affect the value of the Leased Premises. Lessee shall have the right to grant
easements upon the estate of Lessor which are required for utilities or access
in connection with construction of the improvements and Lessor agrees to execute
all documents which Lessee may reasonably request in order to grant such
easements.
Section 6.02 Operating Expenses. Lessee agrees to pay any and all expenses of
operation of the Leased Premises including, but not being limited to,
electricity, water, gas, and other utility services to persons and parties
occupying the Leased Premises; it being the intention of this Lease that the
amounts payable to Lessor hereunder as rent shall be absolutely net to Lessor,
without diminution by reason of any expenses of operation of the Leased
Premises.
Section 6.03 Repairs; Compliance with Laws. Lessee shall keep all
Improvements from time to time situated on the Leased Premises in a good repair
and condition, and at the end or other expiration of the term of this Lease
deliver up the Leased Premises and all Improvements thereon, whether on the
Leased Premises at the time of execution of this Lease or constructed by Lessee
in accordance herewith, in good condition, reasonable wear and tear excepted
(subject to Article XII hereof). Lessee shall at its sole cost and expense
comply with all requirements of all municipal, state, and federal authorities
now in force or which may hereafter be in force, pertaining to the Leased
Premises and shall faithfully observe in the use of the Leased Premises all
municipal, state, and federal laws and regulations now in force or which may
hereafter be in force.
Section 6.04 Title to the Improvements. All Improvements presently
constituting a part of the Leased Premises shall be owned by Lessor. Title to
all Improvements and any modifications, additions, restorations, repairs, and
replacements thereof hereafter placed or constructed by Lessee upon the Leased
Premises shall be in Lessee, its successors and assigns, until the expiration of
the Lease Term; provided, however, that the terms and provisions of this Lease
shall apply to all such Improvements and that all such Improvements (with the
exception only of moveable equipment and trade fixtures, and gasoline storage
tanks, pumps, and equipment) shall be surrendered to Lessor upon the termination
of the Lease Term.
Section 6.05 Liens. Lessor does not consent, and has not by the execution and
delivery of this Lease consented, to the imposition by Lessee or any contractor
or subcontractor of any liens upon the Lessor's interest in the Leased Premises.
Lessee agrees that all Improvements at any time constructed upon the Leased
Premises will be completed free and clear of all liens and claims of
contractors, subcontractors, mechanics, laborers, materialmen, and other
claimants. Lessee further covenants and agrees to protect, indemnify, defend,
and hold harmless Lessor from and against all bills and claims, liens and rights
to liens for labor and materials and architect's, contractor's, and
subcontractor's claims, and all fees, claims, and expenses incident to the
construction and completion of any improvements, including without limitation,
reasonable attorneys' fees and court costs incurred by Lessor.
ARTICLE VII
Utility Charges
Section 7.01 Lessee shall pay or cause to be paid promptly when due all
charges for water, electricity, gas, telephone, or any other utility services
furnished to the Leased Premises; it being the intention of this Lease that the
amounts payable to Lessor hereunder as rent shall be absolutely net to Lessor,
without diminution by reason of any expenses of utilities of the Leased
Premises. Lessee expressly agrees that Lessor is not, nor shall it be, required
to furnish to Lessee or any other occupant of the Leased Premises any water,
sewer, gas, heat, electricity, light, power, or any other facilities, equipment,
labor, materials, or services of any kind whatsoever.
ARTICLE VIII
Indemnification
Section 8.01 Lessee covenants and agrees, at its sole cost and expense, to
indemnify and hold Lessor harmless from and against any and all claims by or on
behalf of any person, firm, corporation, or governmental authority, arising from
the occupation, use, possession, conduct, or management of, or from any work or
thing whatsoever done in and about, the Leased Premises during the Lease Term,
or the subletting of any part thereof. Lessee further agrees to indemnify and
save Lessor harmless from and against any and all claims arising from any
condition, whether currently existing or hereafter occurring, of the Leased
Premises or the Improvements (including, but not limited to, claims or liability
under the Comprehensive Environmental Response, Compensation and Liability Act
of 1980 and the Resource Conservation and Recovery Act of 1976, or any other
state or federal environmental law or regulation) or rising from any breach or
default on the part of Lessee to be performed pursuant to the terms of this
Lease, or arising from any action, injury, or damage whatsoever caused to any
person, firm, or corporation, including any sublessees of Lessee (other than
those caused by Lessor or its representatives and employees) occurring during
the Lease Term in or about the Leased Premises or upon and under the sidewalks
and the land adjacent thereto, including, but not limited to, any claim based on
the release of any hazardous or toxic materials. The indemnification obligations
of Lessee hereunder shall include all costs, expenses, and liabilities incurred
by Lessor, including reasonable attorneys' fees. If any action or proceeding
shall be brought against Lessor by reason of any such claim, Lessee upon receipt
of written notice from Lessor covenants to defend such action or proceeding with
counsel satisfactory to Lessor, unless such action or proceeding is defended by
any carrier of public liability insurance maintained by Lessee. Any insurance
policy or policies procured or maintained by Lessee insuring it against
liability for injury or death of a person or persons shall name Lessor as an
additional insured.
ARTICLE IX
Taxes and Assessments
Section 9.01 Obligation of Lessee. Lessee shall pay to, or on behalf of,
Lessor as additional rent the amount of the real estate taxes allocable to the
Leased Premises (which shall be separately assessed) for each tax year included
within the Term of this Lease, provided that for the first and last tax years
included in part within the term of this Lease, Lessee shall pay to Lessor a pro
rata share of such taxes for such tax years based upon the portions of such tax
years included within the term of this Lease; it being the intention of this
Lease that the amounts payable to Lessor hereunder as rent shall be absolutely
net to Lessor, without diminution by reason of any expenses of taxes or other
assessments on the Leased Premises. Real estate taxes shall not include any
income, excess profits, estate, inheritance, succession, transfer, franchise,
capital, or other tax or assessment upon Lessor or upon the rentals payable
under this Lease, all of which shall be the obligation of Lessor.
Section 9.02 Amount of Taxes. If there shall be more than one taxing
authority, the real estate taxes for any period shall be the sum of such taxes
for such period attributable to each taxing authority. The real estate taxes for
any tax year shall mean such amounts as shall be finally determined to be the
real estate taxes assessed and payable for such tax year less any abatements,
refunds, or rebates made thereof. For the purpose of determining payments due
from Lessee to Lessor in accordance with the provisions hereof, (i) the real
estate taxes for any tax year shall be deemed to be the real estate taxes
assessed and payable for such tax year until such time as the same may be
reduced by abatement, refund, or rebate, and (ii) if any abatement, refund, or
rebate shall be made for such tax year, the real estate taxes for such tax year
shall be deemed to be the real estate taxes as so reduced plus the expenses of
obtaining the reduction, with an appropriate adjustment to be made in the amount
payable from or paid by Lessee to Lessor on account of the real estate taxes.
Section 9.03 Contest of Assessments. Lessee shall have such rights to contest
the validity or amount of any real estate taxes as permitted to Lessor, or
Lessee, by law, either in its own name or in the name of Lessor. Lessor shall
cooperate with Lessee in any such contest and, in connection therewith, shall
make available to Lessee such information in its files as Lessee may reasonably
request. If any abatement, refund, or rebate shall be obtained, the expenses of
obtaining the same shall be a first charge thereon.
Section 9.04 Documentation and Payment. Lessor shall submit to Lessee copies
of the real estate tax bills for each tax year. Lessor shall bill Lessee for any
amount that may be payable by Lessee pursuant to the provisions herein. Such
bill shall be accompanied by a computation of the amount payable. The amount
payable by Lessee hereunder for any tax year shall be payable on or before the
time that Lessor shall be required to pay real estate taxes to the taxing
authority for such tax year, but if Lessee shall not have received a bill
therefor at least fourteen days prior to such time for payment, Lessee shall not
be required to make payment until fourteen days after the receipt of such bill.
(If real estate taxes are payable to any taxing authority for any tax year in
installments, the amount payable by Lessee hereunder shall be payable in similar
installments. If real estate taxes are payable to different taxing authorities
for any tax year at different times, an appropriate apportionment shall be made
of the amount payable by Lessee for such tax year and the apportioned amounts
shall be payable at such times). Lessor agrees that real estate taxes upon the
Leased Premises shall be paid by Lessor prior to the last day that the same may
be paid without penalty or interest, or if a discount shall be available for
early payment, prior to the last day that such discount shall be available.
Lessor agrees to provide Lessee evidence of any taxes paid by Lessor.
Section 9.05 Personal Property Taxes. Lessee agrees to pay all taxes levied
against personal property, trade fixtures, and inventory in, on, or about the
Leased Premises.
ARTICLE X
Title
Section 10.01 Lessor's Warranty of Title. Lessor warrants and represents that
the Leased Premises is owned by Lessor in fee, free and clear of any
restrictions which would materially adversely affect the use of the Leased
Premises by Lessee and that Lessor has the legal right to make and enter into
this Lease.
Section 10.02 Peaceable Possession. Lessor warrants to Lessee the peaceable
enjoyment of the Leased Premises against the lawful let, hindrance, or
disturbance of any person or persons whomsoever.
ARTICLE XI
Assignment, Subletting, and Encumbrance
Section 11.01 No Assignment or Subletting without Consent. Lessee may assign
this Lease or sublet all or any part of the Leased Premises without Lessor's
prior written consent; provided, however, that for so long as Lessor's interest
in the Leased Premises is encumbered either by mortgage or trust deed and/or by
assignment of this Lease to or for the benefit of AMRESCO Commercial Finance,
Inc., its successors or assigns (collectively, "Lender"), (i) no such assignment
shall occur nor be permitted, with or without Lessor's consent, without such
Lender's prior written consent, which consent may be withheld in Lender's sole
and absolute discretion, and (ii) no such subletting shall occur nor be
permitted, with or without Lessor's consent, without such Lender's prior written
consent, which consent may not be unreasonably withheld. Any attempted
assignment or subletting not complying with the provisions of this Section shall
be null and void and of no legal effect whatsoever.
Section 11.02 Lessee Remains Liable. If Lessee assigns this Lease or sublets
all or any part of the Leased Premises, Lessee shall remain liable and
responsible under this Lease for the performance of the covenants and
obligations of Lessee hereunder, in its capacity as a principal hereunder and
not as a surety.
Section 11.03 Notice in Event of Subletting. If Lessee assigns this Lease,
then Lessor, when giving notice to said assignee or any future assignee in
respect of any default, shall also serve a copy of such notice upon Lessee.
ARTICLE XII
Condemnation
Section 12.01 Entire Taking. If all of the Leased Premises shall be taken in
condemnation proceedings, this Lease shall terminate as of the taking and the
Monthly Rent and additional rent shall be paid to the date of such termination.
Lessor shall give Lessee a proportionate refund of any rent paid in advance.
Section 12.02 Partial Taking. If less than all of the Leased Premises shall
be taken in condemnation proceedings, this Lease shall not terminate, nor shall
Lessee be entitled to any abatement of rent or reduction thereof.
Section 12.03 Application of Award. If this Lease shall terminate pursuant to
the provisions of Section 12.01 of this Article, Lessor's share of the
condemnation award together with any separate award to Lessee shall be
apportioned and paid in the following order of priority:
A. There shall be first paid any and all reasonable expenses, charges, and
fees, including reasonable counsel fees, in collecting the award.
B. Lessor shall then be entitled to receive an amount equal to the reasonable
market value of the taken Leased Premises, on a basis without consideration of
any unexpired portion of the term of this Lease and unencumbered by this Lease.
If Lessor and Lessee cannot agree as to such value, the same shall be determined
by arbitration in accordance with the provisions of Section 17.11.
C. The balance of the award shall be paid to the Lessee; provided, that if
the remainder of the Lease Term is, at the time of the taking, less than one
year, such balance shall be paid to Lessor.
Section 12.04 Application of Award in Partial Taking. If this Lease shall not
terminate but shall continue in full force and effect pursuant to the provisions
of Section 12.02 of this Article, Lessee shall commence and proceed with
reasonable diligence to repair or reconstruct the remaining building or
buildings on the taken Leased Premises to a complete architectural unit or units
to the extent proceeds of the condemnation award are available therefor.
Lessor's share of the award in condemnation proceedings for any partial taking
where repair or reconstruction is undertaken, together with any separate award
to Lessee, shall be apportioned and paid in the following order of priority:
A. There shall first be paid any and all reasonable expenses, charges, and
fees paid to parties unaffiliated to either Lessor or Lessee, including
reasonable counsel fees, in collecting the awards.
B. The proceeds of the awards shall next be paid to Lessee for the
restoration of the building, improvements, and equipment situated on the Leased
Premises to a complete architectural unit or units; provided, however, that for
so long as Lessor's interest in the Leased Premises is encumbered either by
mortgage or trust deed and/or by assignment of this Lease to or for the benefit
of Lender, such proceeds shall be paid to and held by Lender or its designee and
be paid out from time to time to persons furnishing labor or materials, or both,
including architects' fees and contractors' compensation in such restoration
work on vouchers approved by a licensed architect, engineer or other person
approved by Lessor and employed by Lessee to superintend the work.
C. Lessor shall then be entitled to an amount equal to the reasonable market
value of the portion of the Leased Premises taken, without consideration of any
unexpired portion of the term of this Lease and unencumbered by this Lease. If
Lessor and Lessee cannot agree as to such value, the same shall be determined by
arbitration in accordance with the provisions of Section 17.11.
D. The balance of the award shall be paid to Lessee.
Section 12.05 Temporary Possession. If any right of temporary possession or
occupancy of all or any portion of the Leased Premises shall be obtained by any
competent authority in the exercise of the power of eminent domain, the
foregoing provisions of this Article shall be inapplicable thereto and this
Lease shall continue in full force and effect without reduction or suspension of
Monthly Rent and additional rent and Lessee shall be entitled to make claim for
and recover any award or awards, whether in the form of rental or otherwise,
recoverable in respect of such possession or occupancy. The award shall be paid
to Lessor and applied against the Monthly Rent payable by Lessee under this
Lease, as the same becomes due, with any surplus to be paid to Lessee; provided
that if any portion of the award is intended to cover the cost of restoring the
Leased Premises to the condition they were in prior to such temporary possession
or occupancy or to make any repairs occasioned by or resulting from such
possession or occupancy, such portion shall be so applied.
Section 12.06 Consent to Settlement by Lessor. Lessee shall have primary
responsibility for dealing with the condemning authority in the condemnation
proceedings, but Lessee shall not make any settlement with the condemning
authority nor convey or agree to convey the whole or any portion of the Leased
Premises to such authority in lieu of condemnation without first obtaining the
written consent of Lessor thereto, which consent shall not be unreasonably
withheld if Lessor receives not less than the fair market value of the Leased
Premises taken.
ARTICLE XIII
Events of Default and Remedies
Section 13.01 Events of Default. The following events ("Events of Default")
shall be deemed to be events of default by Lessee under this Lease:
A. Failure by Lessee to pay any installment of the Monthly Rent or any
additional rent or any other sum of money payable hereunder on the date the same
is due and such failure shall continue for a period of two (2) business days
after written notice to Lessee.
B. Failure by Lessee to comply with any term, provision, or covenant of this
Lease, other than the payment of rent or other sums of money, and Lessee shall
not cure such failure within thirty (30) days after written notice thereof to
Lessee; or if such failure cannot reasonably be cured within the said thirty
(30) days, and Lessee shall not have commenced to cure such failure within such
thirty (30) day period and shall not thereafter with all due diligence and good
faith proceed to cure such failure.
C. The entering of a decree or order by a court of competent jurisdiction
adjudging Lessee a bankrupt or insolvent or appointing a receiver or trustee or
assignee in bankruptcy or insolvency of all or substantially all of its
property, and any such decree or order shall have continued in force
undischarged or unstayed for a period of sixty (60) days.
D. The doing or permitting to be done by Lessee or any sublessee, assignee,
grantee, or agent of Lessee of anything which creates a lien upon Lessor's
interest in the Leased Premises, and any such lien is not discharged or bonded
within thirty (30) days after filing.
E. The insolvency of Lessee or the making a transfer in fraud of creditors,
an assignment for the benefit of creditors, or the filing of a proceeding in
bankruptcy by Lessee, or the appointing of a receiver or trustee for Lessee or
any of the assets of Lessee.
F. The termination, including by expiration or nonrenewal, without Lender's
prior written consent, which consent may be withheld in Lender s sole and
absolute discretion, of any of the existing leases between Lessor and Lessee
with respect to the real properties listed in Exhibit C attached hereto and
incorporated herein by reference (the "FMAC Encumbered Leases"), during such
time as Lessor s interest in the Leased Premises is encumbered either by
mortgage or trust deed and/or by assignment of this Lease to or for the benefit
of Lender.
Section 13.02 Remedies. Upon the occurrence of any Event of Default
enumerated in Section 13.01 hereof, Lessor shall have the option of (i)
terminating this Lease by written notice thereof to Lessee, (ii) continuing this
Lease in full force and effect, or (iii) curing the default on behalf of Lessee;
provided, however, that for so long as Lessor's interest in the Leased Premises
is encumbered either by mortgage or trust deed and/or assignment of this Lease
to or for the benefit of Lender, no such termination of this Lease shall occur
without Lender's prior written consent, which consent may be withheld in
Lender's sole and absolute discretion.
A. In the event that Lessor shall elect to terminate this Lease, upon written
notice to Lessee, this Lease shall be ended as to Lessee and all persons holding
under Lessee, and all of Lessee's rights shall be forfeited and lapsed, as fully
as if this Lease had expired by lapse of time. In such event, Lessee shall be
required immediately to vacate the Leased Premises and there shall immediately
become due and payable the amount by which (a) the total rent and other benefits
which would have accrued to Lessor under this Lease for the remainder of the
Term of this Lease if the terms and provisions of this Lease had been fully
complied with by Lessee exceeds (b) the total fair market rental value of the
Leased Premises for the balance of the Term of this Lease (it being the
intention of both parties hereto that Lessor shall receive the benefit of its
bargain); and Lessor shall at once have all of the rights of re-entry upon the
Leased Premises, without becoming liable for damages or guilty of a trespass. In
addition to the sum immediately due from Lessee under the foregoing provision,
there shall be recoverable from Lessee: (w) the reasonable cost of restoring the
Leased Premises to good condition, normal wear and tear excepted (subject to
Article XII hereof); (x) all accrued unpaid sums, plus interest at the highest
lawful rate per annum and late charges, if in arrears, under the terms of this
Lease up to the date of termination; (y) Lessor's reasonable cost of recovering
possession of the Leased Premises; and (z) rent and sums accruing subsequent to
the date of termination pursuant to the holdover provisions of Section 17.14
hereof.
B. In the event that Lessor shall elect to continue this Lease in full force
and effect, Lessee shall continue to be liable for all rents. Lessor shall
nevertheless have all of the rights of re-entry upon said Leased Premises
without becoming liable for damages or being guilty of a trespass and Lessor
after re-entry may relet the Leased Premises, or any part thereof, to a
substitute tenant or tenants for a period of time equal to or lesser or greater
than the remainder of the term on whatever terms and conditions Lessor, at
Lessor's sole discretion, deems advisable. Against the rents and sums due from
Lessee to Lessor during the remainder of the term, credit shall be given Lessee
in the net amount of rent received from the new tenant after deduction by Lessor
for: (a) the reasonable costs incurred by Lessor in reletting the Leased
Premises (including, without limitation, remodeling costs, brokerage fees, legal
fees, and the like); (b) the accrued sums, plus interest and late charges, if in
arrears, under the terms of this Lease; (c) Lessor's reasonable cost of
recovering possession of the Leased Premises; and (d) the cost of storing any of
Lessee's property left on the Leased Premises after re-entry. Notwithstanding
any provision in this paragraph B of Section 13.02 to the contrary, upon the
default of any substitute tenant or upon the expiration of the lease term of
such substitute tenant before the expiration of the Term of this Lease, Lessor
may, at Lessor's election, either relet to still another substitute tenant or
terminate this Lease and exercise its rights under paragraph A of this Section
13.02.
C. In the event that Lessor shall elect to cure the default of Lessee, all
sums expended by Lessor in effecting such cure, plus interest thereon at the
highest lawful rate per annum, shall be due and payable immediately. Such sum
shall constitute additional rent hereunder, and failure to pay such sum when due
shall enable Lessor to exercise all of its remedies under this Lease.
Section 13.03 Cumulative Rights. Pursuit of any of the foregoing remedies
shall not preclude pursuit of any of the other remedies herein provided or any
other remedies provided by law, nor shall pursuit of any remedy herein provided
constitute a forfeiture or waiver of any rent due to Lessor hereunder or of any
damages accruing to Lessor by reason of the violation of any of the terms,
provisions, and covenants herein contained. Failure by Lessor to enforce one or
more of the remedies herein provided, upon any Event of Default, shall not be
deemed or construed to constitute a waiver of such default or of any other
violations or breach of any of the terms, provisions, and covenants herein
contained.
Section 13.04 Re-Entry by Lessor. No re-entry or taking possession of the
Leased Premises by Lessor shall be construed as an election on its part to
terminate this Lease unless a written notice of such intention is given to
Lessee. Lessor, at its option, may make such alterations or repairs to the
Improvements as it, in its reasonable judgment, considers advisable and
necessary upon the occurrence of an Event of Default, at the cost of Lessee, and
the making of such alterations or repairs shall not operate or be construed to
release Lessee from liability hereunder. Lessor shall in no event be liable in
any way whatsoever for failure to relet the Leased Premises and the Improvements
or, in the event the Leased Premises and the Improvements are relet, for failure
to collect rent thereof under such reletting; and in no event shall Lessee be
entitled to receive any excess of such rent over the sums payable by Lessee to
Lessor hereunder; provided, however, that Lessor shall during such time as
Lessor is in possession of the Leased Premises as the result of any re-entry by
Lessor hereunder, and prior to any termination of this Lease, exercise
reasonable efforts to cause the Leased Premises to be re-leased.
Section 13.05 Effect of Waiver or Forbearance. No waiver by Lessor of any
breach by Lessee of any of its obligations, agreements, or covenants hereunder
shall be a waiver of any subsequent breach or of any obligation, agreement, or
covenant, nor shall any forbearance by Lessor to seek a remedy for any breach by
Lessee be a waiver by Lessor of its rights and remedies with respect to such
subsequent breach.
Section 13.06 Bankruptcy of Lessee. The provisions of paragraph C and E of
Section 13.01 above shall only apply with respect to the Lessee which is the
then owner of the leasehold estate. Notwithstanding the provisions of Section
13.01 to the contrary, the happening of any of the Events of Default mentioned
in paragraph C or E of Section 13.01 above shall not operate or permit Lessor to
declare a default hereunder or terminate this Lease so long as all covenants of
Lessee hereunder shall be performed by Lessee or its successor in interest.
ARTICLE XIV
Insurance
Section 14.01 Liability Insurance. Lessee shall, at Lessee's expense, procure
and maintain at all times during any term of this Lease a policy of
comprehensive general liability insurance, insuring Lessor and Lessee against
liability arising out of the ownership, use, occupancy, or maintenance of any
Leased Premises. Such insurance shall at all times be in an amount of not less
than $1,000,000.00 on a per occurrence basis. The limits of such insurance shall
not limit the liability of the Lessee under this Lease. All insurance required
under this Article XIV shall be with companies rated B++ or better in Best's
Insurance Guide. Lessee shall deliver to Lessor certificates of insurance
evidencing such insurance with loss payable clauses satisfactory to Lessor,
provided that in the event Lessee fails to procure and maintain such insurance,
Lessor may (but shall not be required to) procure same at Lessee's expense after
ten (10) days' prior written notice. No such policy shall be cancelable or
subject to reduction of coverage or other modification except after sixty (60)
days' prior written notice to Lessor by the insurer. All such policies shall be
written as primary policies, not contributing with and not in excess of
coverages which the Lessor may carry. Lessee shall, within twenty (20) days
prior to the expiration of such policies, furnish Lessor with renewals or
binders or Lessor may order such insurance and charge the cost to the Lessee,
which amounts shall be payable by Lessee on demand as additional rent. Lessee
shall have the right to provide such insurance coverage pursuant to blanket
policies which the Lessee may have in force, provided such blanket policies
expressly afford coverage of any Leased Premises and to Lessor as is required by
this Section.
Section 14.02 Property Insurance. Lessee shall, at Lessee's expense, procure
and maintain at all times during the term of this Lease, a policy or policies of
insurance covering loss or damage to any Leased Premises in an amount not less
than ninety-five percent (95%) of the estimated replacement value thereof, and
providing protection against all perils included within the classification of
fire, extended coverage, vandalism, malicious mischief, sprinkler leakage,
flood, and special extended peril (all risk). Lessee shall pay the entire amount
of such annual insurance premiums and shall deliver to Lessor certificates of
insurance evidencing such insurance with loss payable clauses satisfactory to
Lessor, provided that in the event Lessee fails to provide and maintain such
insurance, Lessor may (but shall not be required to) procure same at Lessee's
expense after ten (10) days' prior written notice. No such policy shall be
cancelable or subject to reduction of coverage or other modification except
after sixty (60) days' prior written notice to Lessor by the insurer. All such
policies shall be written as primary policies, not contributing with and not in
excess of coverages which the Lessor may carry. Lessee shall furnish Lessor with
renewals or binders or Lessor may order such insurance and charge the cost to
the Lessee, which amounts shall be payable by Lessee on demand. Such insurance
shall provide for payment of losses thereunder to Lessor or the holder of a
first mortgage or deed of trust on any of the Leased Premises. Any loss proceeds
shall be made available for the purposes of replacing or rebuilding the
pertinent Leased Premises to the condition existing immediately prior to such
damage, if any such construction activities are permissible under applicable
laws and regulations then pertaining to the damaged Leased Premises; provided,
however, that for so long as Lessor's interest in the Leased Premises is
encumbered either by mortgage or trust deed and/or by assignment of this Lease
to or for the benefit of Lender, such proceeds shall be held by Lender or its
designee to be used in the manner herein provided.
Section 14.03 Release. Lessor hereby releases Lessee, and Lessee hereby
releases Lessor, and their respective officers, agents, employees, and
representatives, from any and all claims or demands for damages, loss, expense,
or injury to the Leased Premises, or to the furnishings, fixtures, equipment, or
inventory or other property of either Lessor or Lessee in, about, or upon the
Leased Premises, as the case may be, which is caused by or results from perils,
events, or happenings which are the subject of insurance carried by the
respective parties and in force at the time of any such loss; provided, however,
that such waiver shall be effective only to the extent permitted by the
insurance covering such loss and to the extent such insurance is not prejudiced
thereby or the expense of such insurance is not thereby increased.
ARTICLE XV
Attorney's Fees and Lessor's Lien
Section 15.01 Attorney's Fees. If on account of any breach or default by
either party hereunder it shall become necessary for the other party hereto to
employ an attorney to enforce or defend any of said party's rights or remedies
hereunder, and should such party prevail in a final judgment, the party against
whom enforcement was sought shall pay to the other party any reasonable
attorney's fees incurred by reason of such proceedings.
Section 15.02 Lessor's Lien. In addition to the statutory landlord's lien,
Lessor shall have at all times, and Lessee does hereby grant to Lessor, a valid
contractual lien upon and a security interest in all goods, wares, equipment,
fixtures, furniture, and other personal property of Lessee presently or which
may hereafter be situated on the Leased Premises and all proceeds therefrom to
secure the payment by Lessee of all rentals and other sums of money due
hereunder, and such property shall not be removed therefrom without the consent
of Lessor until all arrearages in rent, as well as any and all other sums of
money then due to Lessor hereunder, shall first have been paid and discharged.
Upon the occurrence of an Event of Default by Lessee, Lessor may sell any and
all improvements, goods, wares, equipment, fixtures, furniture, and other
personal property of Lessee situated on the Leased Premises at one or more
public or private sales after giving Lessee reasonable notice of the time and
place of any public sale or sales or of the time after which any private sale or
sales are to be made, with or without having such property at the sale, at which
Lessor or its assigns may purchase property to be sold, being the highest bidder
therefor. The requirement of reasonable notice to Lessee hereunder shall be met
if such notice is given in the manner prescribed in Section 17.06 of this Lease
at least ten (10) days before the time of sale. The proceeds from any such
disposition less any and all expenses connected with the taking of possession,
holding, and selling of the property (including reasonable attorney's fees and
legal expenses) shall be applied as a credit against any sums due by Lessee to
Lessor. Any surplus shall be paid to Lessee or as otherwise required by law.
Upon request by Lessor, Lessee agrees to execute and deliver to Lessor financing
statements in form sufficient to perfect the security interest of Lessor in the
aforesaid property and proceeds under the provisions of the Uniform Commercial
Code in force in the states in which the Leased Premises are located.
Notwithstanding anything to the contrary stated herein, the statutory lien of
Lessor and the landlord's lien and security interest granted in this paragraph
are subject and subordinate to the rights, if any, of the holder of any
indebtedness secured by Lessee's interest in the equipment or other property
located on the Leased Premises, and Lessor agrees to execute such additional
documents as shall be necessary to effect or evidence such subordination.
ARTICLE XVI
Right of First Refusal
Section 16.01 As long as Lessee is Lessee under this Lease and provided
Lessee is not in default hereunder, if at any time after the execution of this
Lease Lessor shall receive a bona fide offer which it is willing to accept to
sell or transfer legal title to the Leased Premises (or any interest therein) to
any person (other than an affiliate, shareholder, partner, joint venturer,
spouse, or lineal descendant of Lessor or any trust for their benefit), Lessor
shall, within fifteen (15) days after Lessor's receipt of the acceptable offer,
notify Lessee of the terms of such offer ("Lessor's Offer Notice"). Lessor's
Offer Notice shall include the name of the offeror and the offered consideration
and other terms of such offer (together with a copy of the offer) and Lessee,
within ten (10) days after receipt of Lessor's Offer Notice, shall have the
right to purchase the interest to be sold or transferred on all the other terms
and conditions stated in Lessor's Offer Notice. Failure of Lessee to exercise
such right within said ten (10) days period shall be deemed a waiver of such
right. Upon notice from Lessee of its decision not to exercise such right or
upon waiver of the same, Lessor shall be free to consummate the sale or transfer
in accordance with the terms set forth in Lessor's Offer Notice. In the event
such sale or transfer is not consummated within six (6) months after the date of
the delivery of Lessor's Offer Notice, the right granted to Lessee in this
Article XVI shall be reinstated, and any such subsequent sale or transfer shall
be subject to this right. Any sale or transfer contemplated by this Article XVI
shall be subject to the provisions of this Lease including, without limitation,
the rights of Lessee contained herein. Upon Lessee's exercise of its right of
first refusal hereunder, Lessee may assign such rights to any other person or
entity without the consent of Lessor or any trust for their benefit, but any
assignment shall not relieve Lessee of its obligations hereunder or thereunder.
The right of first refusal herein granted to Lessee shall not apply to any
transfer by Lessor of the Leased Premises to any affiliate, shareholder,
partner, joint venturer, spouse, or lineal descendant of Lessor or any trust for
their benefit or to any transfer by gift, will, or the laws of descent and
distribution. The right of first refusal herein granted to Lessee shall be, and
is hereby made, subject and subordinate to any mortgage or trust deed and/or
assignment of this Lease to or for the benefit of Lender.
ARTICLE XVII
Miscellaneous
Section 17.01 Inspection. Lessee shall permit Lessor and its agents to enter
into and upon the Leased Premises at all reasonable times and upon reasonable
notice for the purpose of inspecting the same on condition that Lessee's and
Lessee's tenants use and quiet enjoyment of the same is not interfered with.
Section 17.02 Estoppel Certificates. Lessee and Lessor shall, at any time and
from time to time upon not less than ten (10) days' prior request by the other
party, execute, acknowledge, and deliver to Lessor, or Lessee, as the case may
be, a statement in writing certifying that (i) this Lease is unmodified and in
full force and effect (or if there have been any modifications, that the same
are in full force and effect as modified and stating the modifications) and, if
so, the dates to which the fixed rent and any other charges have been paid in
advance, and (ii) that no default hereunder on the part of the Lessor or Lessee,
as the case may be, exists (except that if any such default does exist the
certifying party shall specify such default), it being intended that any such
statement delivered pursuant to this Section 17.02 may be relied upon by a
prospective purchaser or encumbrancer (including assignees) of the Leased
Premises.
Section 17.03 Release. If requested by Lessor, Lessee shall upon termination
of this Lease execute and deliver to Lessor an appropriate release, in form
proper for recording, of all Lessee's interest in the Leased Premises, and upon
request of Lessee, Lessor will execute and deliver a written cancellation or
termination of this Lease in proper form for recording; provided, that in no
event shall any such release, cancellation, or termination constitute a release
or relinquishment by either party of his or its rights against the other party
for any amounts payable by such other party under the terms of this Lease or any
damages to which such party is entitled as a result of any default by the other
party hereunder.
Section 17.04 Lessor's Right to Perform Lessee's Covenants. If Lessee shall
default in the performance of any of its covenants, obligations, or agreements
contained in this Lease, other than the obligation to pay rent, Lessor after ten
(10) days' notice to Lessee specifying such default (or shorter notice if any
emergency exists), may (but without any obligation so to do) perform the same
for the account and at the expense of Lessee, and the amount of any payment made
or other reasonable expenses, including reasonable attorneys' fees, incurred by
Lessor for curing such default, with interest thereon at the lower of twelve
percent (12.0%) per annum or the maximum amount allowed by law, shall be payable
by Lessee to Lessor on demand as additional rent.
Section 17.05 Non-Merger. There shall be no merger of this Lease, the
leasehold estate created hereby or the Improvements with the fee estate in and
to the Leased Premises by reason of the fact that this Lease, the leasehold
estate created thereby, or the Improvements, or any interest in the foregoing,
may be held directly or indirectly by or for the account of any person who shall
own the fee estate in and to the Leased Premises, or any portion thereof, and no
such merger shall occur unless and until all persons at the time having any
interest in the fee estate and all person having any interest in this Lease, the
leasehold estate, or the Improvements, including the holder of any mortgage or
deed of trust upon the fee estate in and to the Leased Premises and/or any
assignee of this Lease, shall join in a written instrument effecting such
merger.
Section 17.06 Notices. Any notice to be given or to be served in connection
with this Lease must be in writing, and may be given by facsimile, by certified
mail, or by overnight delivery service and shall be deemed to have been given
and received upon the earlier of receipt thereof by the receiving party or on
the third business day after a letter containing such notice, properly
addressed, with postage prepaid is deposited in the United States Mail or given
to a nationally recognized overnight delivery service, addressed as follows:
If to Lessor:
FFP Properties, L.P.
Attn: Lease Administration
2801 Glenda Avenue
Fort Worth, Texas
76117-4391
Facsimile: 817/838-1871
If to Lessee:
FFP Operating Partners, L.P.
Attn: Contracts Administration
2801 Glenda Avenue
Fort Worth, Texas
76117-4391
Facsimile: 817/838-1871
Each party hereto shall have the right, by giving not less than five (5)
days' prior written notice to the other parties hereto, to change any address of
such party for the purpose of notices under this Section 17.06.
Section 17.07 Successors and Assigns. The word "Lessor," as used in this
instrument, shall extend to and include any and all persons, whether natural or
artificial, who at any time or from time to time during the term of this Lease
shall succeed to the interest and estate of Lessor in the Leased Premises; and
all of the covenants, agreements, conditions, and stipulations herein contained
which inure to the benefit of and are binding upon Lessor shall also inure to
the benefit of and shall be, jointly and severally, binding upon the heirs,
executors, administrators, successors, assigns, and grantees of Lessor, and each
of them, and any and all persons who at any time or from time to time during the
term of this Lease shall succeed to the interest and estate of Lessor in the
real estate and property hereby demised. The word "Lessee," as used in this
instrument, shall extend to and include any and all persons, whether natural or
artificial, who at any time or from time to time during the term of this Lease
shall succeed to the interest and estate of Lessee hereunder in accordance with
the terms of Section 11.01; and all of the covenants, agreements, conditions,
and stipulations herein contained which inure to the benefit of or are binding
upon Lessee shall also inure to the benefit of and be jointly and severally
binding upon the successors, assigns, or other representatives of Lessee, and of
any and all persons who shall at any time or from time to time during the term
of this Lease succeed in accordance with the terms of Section 11.01 to the
interest and estate of Lessee hereby created in the Leased Premises.
Section 17.08 Modifications. This Lease may be modified only by written
agreement signed by the Lessor and Lessee; provided, however, that for so long
as Lessor's interest in the Leased Premises is encumbered either by mortgage or
trust deed and/or by assignment of this Lease, no amendment, waiver, release,
discharge, or other modification of the terms of this Lease shall be effective
without the written consent of Lender, which consent may be withheld in Lender's
sole and absolute discretion.
Section 17.09 Descriptive Headings. The descriptive headings of this Lease
are inserted for convenience in reference only and do not in any way limit or
amplify the terms and provisions of this Lease.
Section 17.10 No Joint Venture. The relationship between Lessor and Lessee at
all times shall remain solely that of landlord and tenant and shall not be
deemed a partnership or joint venture.
Section 17.11 Arbitration. Wherever in this Lease it is provided that any
question shall be determined by arbitration, such question shall be settled and
finally determined by arbitration in accordance with the rules then in effect of
the American Arbitration Association, or its successors, and the judgment upon
the award rendered may be entered in any court having jurisdiction thereover.
Such arbitration shall be held in the City of Fort Worth, Texas. The number of
arbitrators to be appointed shall be three (3). The arbitrators shall have at
least five (5) years experience in real estate in the area where the Leased
Premises is located and shall not be related to either party. The parties to the
arbitration, in addition to the rights granted under the rules of the
Association, shall have the right to offer evidence and testify at the hearings
and cross-examine witnesses. The cost of such arbitration shall be split equally
between the parties.
Section 17.12 Memorandum of Lease. Lessor and Lessee agree that they shall,
at any time at the request of the other, promptly execute a memorandum or short
form of this Lease, in recordable form, setting forth a description of the
Leased Premises, the term of this Lease, and any other provisions herein, or the
substance thereof, as either party desires.
Section 17.13 Partial Invalidity. If any term or provision of this Lease or
the application thereof to any person or circumstance shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to any person or circumstances other than those as to
which it is invalid or unenforceable, shall not be affected thereby, and each
term of this Lease shall be valid and be in force to the fullest extent
permitted by law.
Section 17.14 Holding Over. In case of holding over by Lessee after
expiration or termination of the Term of this Lease, Lessee shall pay monthly,
as rent, an amount equal to 125% of the amount of Monthly Rent payable as of the
end of such Term during each month or partial month of the holdover period. No
holding over by Lessee after the Term of this Lease, either with or without
consent and acquiescence of Lessor, shall operate to extend the Lease for a
longer period than one month unless (i) a holdover agreement in writing
specifies a longer period or (ii) this Lease is extended in writing; and any
holding over without consent of Lessor in writing shall thereafter constitute
this Lease a lease from month to month. In the event of any unauthorized holding
over, Lessee shall indemnify Lessor against all claims for damages by any other
tenant or prospective tenant to whom Lessor may have leased all or any part of
the Leased Premises, resulting from delay by Lessor in delivering possession of
all or any part of the Leased Premises.
Section 17.15 Lessor Default. In the event of any default hereunder by
Lessor, Lessee may, if such default continues after a reasonable notice period
following receipt of written notice thereof to Lessor, cure such default for the
account and at the expense of Lessor. If Lessee at any time after the expiration
of such curative period by reason of such breach is compelled to pay, or elects
to pay, any sum of money or do any act which will require the payment of any sum
of money, or is compelled to incur any expense, including reasonable attorney's
fees, in instituting, prosecuting, and/or defending any action or proceeding to
enforce Lessee's rights hereunder or otherwise, the sum or sums so paid by
Lessee, with all interest, costs, and damages, shall on demand be paid by Lessor
to Lessee, but Lessee shall have no right to offset any such sums against any
amounts which may be due to Lessor hereunder.
Section 17.16 Lessor Covenant. Lessor shall pay when due all principal and
interest on any mortgage or superior lease to which this Lease is subordinate or
subordinated, and shall pay or discharge (by bonding or otherwise) all valid
mechanic's liens filed against the Leased Premises by reasons of any
construction by Lessor.
Section 17.17 Sublease. If this Lease is in fact a sublease, Lessee accepts
this Lease subject to all of the terms and conditions of the underlying lease
under which Lessor holds the Leased Premises as lessee. Lessee covenants that it
will do no act or thing which would constitute a violation by Lessor of its
obligation under such underlying lease; provided, however, that Lessee's
agreement in this regard is premised on Lessor's assurances to the effect that
the terms of this Lease do not violate such underlying lease.
Section 17.18 Venue. This Lease is entered into in Tarrant County, Texas, and
is enforceable in that county.
Section 17.19 Further Covenants. Lessor and Lessee, as applicable, each
further covenant and agree for the benefit of Lender that for so long as
Lessor's interest in the Leased Premises is encumbered either by mortgage or
trust deed and/or by assignment of this Lease:
A. Lessee shall timely take all such action necessary to exercise all renewal
options and extend each of the FMAC Encumbered Leases.
B. Lessee shall remain obligated under this Lease in accordance with its
terms and Lessee will not take any action to terminate, rescind, or avoid this
Lease, notwithstanding the bankruptcy, insolvency, reorganization, composition,
readjustment, liquidation, dissolution, winding-up, or other proceeding
affecting Lessor or any assignee of Lessor in any such proceeding and
notwithstanding any action with respect to this Lease which may be taken by any
trustee or receiver of Lessor or of any assignee of Lessor in any such
proceeding or by any court in any such proceeding.
C. Lessee waives all rights now or hereafter conferred by law (a) to quit,
terminate, or surrender this Lease or any of the premises or any part thereof,
or (b) to any abatement, suspension, deferment, or reduction of the Monthly Rent
or any other sums payable under this Lease, except as otherwise expressly
provided herein, regardless of whether such rights shall arise from any present
or future constitution, statute, or rule of law.
D. In the event that, notwithstanding the express provision of this Lease,
this Lease shall terminate by operation of law, or action of or authorization by
any court, or if any receiver or trustee in bankruptcy, liquidator, or assignee
of Lessor shall initiate any action for the taking possession of the rentals
payable hereunder and the application thereof for the benefit of any creditors
of Lessor other than the holders of obligations secured by a first mortgage or
trust deed on the Leased Premises, Lessee shall, upon thirty (30) days' written
notice to Lessee by Lender that it has all requisite authority to lease the
premises or any part thereof and desires to lease the same or part to Lessee,
enter into a new lease with Lender containing substantially the same terms as
this Lease, provided that a reputable title company will insure that Lessee has
good and valid title to the leasehold estate under the new lease. Forthwith upon
the execution and delivery of such new lease, this Lease and all obligations of
Lessee hereunder shall terminate without further action by any party hereto.
E. This Lease shall be subject and subordinate to the lien of any mortgage or
trust deed to or for the benefit of Lender, without the necessity of the
execution and delivery of any further instruments, whether any such lien is
currently existing or hereafter created, and Lessee shall execute and deliver
upon Lender's request, without charge, such further instruments evidencing such
subordination of this Lease as Lender may request from time to time.
F. In the event of Lender's foreclosure of any mortgage or the exercise of
any power of sale with respect to the Leased Premises, Lessee shall attorn to
Lender and recognize Lender as the Lessor under this Lease, provided Lender
expressly agrees in writing to be bound by the terms of this Lease.
17.20 Third-Party Beneficiary. Lessor and Lessee acknowledge that Lender
shall be a third-party beneficiary of this Lease for so long as Lessor's
interest in the Leased Premises is encumbered either by mortgage or trust deed
and/or by assignment of this Lease to or for the benefit of Lender.
IN WITNESS WHEREOF, the parties have executed this instrument as of the day
and year first above written.
LESSOR:
FFP PROPERTIES, L.P.
By: FFP Partners, L.P.
its sole general partner
By: FFP Real Estate Trust
its sole general partner
By: _____________________________
Craig T. Scott, Vice President
LESSEE:
FFP OPERATING PARTNERS, L.P.
By: FFP Operating LLC
its sole general partner
By: __________________________
Robert J. Byrnes, President
ACKNOWLEDGMENTS
STATE OF TEXAS )
)
County of Tarrant )
This instrument was acknowledged before me on September ____, 1999, by Craig
T. Scott, Vice President of FFP Real Estate Trust, general partner of FFP
Partners, L.P., general partner of FFP Properties, L.P., who stated that the
same was signed in such capacity for such entities and the purposes indicated
therein.
_____________________________
NOTARY PUBLIC, STATE OF TEXAS
[Notary stamp]
STATE OF TEXAS )
)
County of Tarrant )
This instrument was acknowledged before me on September ____, 1999, by
Robert J. Byrnes, President of FFP Operating LLC, general partner of FFP
Operating Partners, L.P., who stated that the same was signed in such capacity
for such entities and for the purposes indicated therein.
_____________________________
NOTARY PUBLIC, STATE OF TEXAS
[Notary stamp]
EXHIBIT B
OF
MASTER LEASE AGREEMENT
(Legal descriptions for all properties listed on Exhibit A)