EXHIBIT 10.2
GROUND LEASE AGREEMENT
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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 GROUND LEASE AGREEMENT made and entered into this ______ day of May,
1987, by and between ________________________________________ ("Lessor") and
FFP Operating Partners, L.P., a Delaware limited partnership ("Lessee").
WHEREAS, the lease agreement covering the premises described on Exhibit A has
been assigned to FFP Operating Partners, L.P.;
WHEREAS, Lessor and Lessee desire to amend the lease agreement in certain
respects and to restate the lease agreement in its entirety.
NOW, THEREFORE, it is agreed by and between Lessor and Lessee as follows:
ARTICLE I
Premises
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 the land described on Exhibit A attached hereto
("Land"), all improvements, buildings, structures, equipment, pumps and tanks 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, the "Leased Premises").
ARTICLE II
Term
The term of this Lease shall be for a period commencing on the _____ day of May,
1987 ("Commencement Date"), and ending on the 31st day of May, 1992 ("Term").
ARTICLE III
Use
Section 3.01. 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
and/or self-service gasoline station.
Section 3.02. 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. Lessee, without offset or deduction, agrees to pay the Lessor at
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, or such other address as Lessor may
designate, rent for the Leased Premises at the rate of_________________________
dollars ($______________) per month ("Monthly Rent") 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. A prorated monthly
rental installment shall be paid, if the Commencement Date is other than the
first day of the month or if the term of the Lease terminates on a day other
than the last day of the month.
Section 4.02. 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.
ARTICLE V
Possession
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 situated thereon, are suitable for the
purposes for which the same are leased, in their present condition.
ARTICLE VI
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 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 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 Release. Lessor hereby releases Lessee, and Lessee hereby
releases Lessor, and their respective officers, agents, employees and servants,
from any and all claims or demands for damages, loss, expense or injury to the
Leased Premises, or to the furnishings and fixtures and 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 result 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.
Section 6.05. Title to the Improvements. All Improvements presently
constituting a part of the Leased Premises shall be owned by Lessee until such
Improvements are removed by Lessee, it being agreed that Lessee shall have the
right to remove or demolish such Improvements at any time. 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, that (i) the terms and provisions of this Lease shall
apply to all such Improvements; and (ii) subject to the provisions of Article
XII, all such Improvements (with the exception only of moveable trade fixtures,
gasoline storage tanks, pumps and equipment) shall be surrendered to Lessor upon
the termination of the Lease Term.
Section 6.06. 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 and 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
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. 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
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 and any
Renewal 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 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 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 his
servants and employees) occurring during the Lease Term in or about the Leased
Premises or upon and under the sidewalks and the land adjacent thereto. The
indemnification obligations of Lessee hereunder shall include all costs,
expenses and liabilities incurred by Lessor, including reasonable attorneys'
fees; and in case 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. If Lessee procures or maintains
insurance insuring Lessee against liability for injury to or death of a person
or persons, such policy or policies shall name Lessor as an additional insured.
ARTICLE IX
Taxes and Assessments
Section 9.01. Lessee shall pay to 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; 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. 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. If there shall be more than one taxing authority, the real estate
taxes for any period shall be the sum of the real estate 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 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 herein, (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 real estate taxes.
Section 9.03. 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. Lessor shall submit to Lessee copies of the real estate tax bills
for each tax year. Lessor shall ▇▇▇▇ Lessee for any amount that may be payable
by Lessee pursuant to the provisions herein. Such ▇▇▇▇ 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 receive a ▇▇▇▇ 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 ▇▇▇▇. (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,
and 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 of that such discount shall be available. Lessor agrees to provide Lessee
evidence of any taxes paid by Lessor.
Section 9.05. Lessee agrees to pay all taxes levied against personal property,
trade fixtures and inventory owned or placed by Lessee 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 all
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 and Subletting
Section 11.01. Lessee shall have the right, without Lessor's consent, to assign
this Lease or sublet all or any part of the Leased Premises.
Section 11.02. If Lessee assigns this Lease or sublets all or any part of the
Leased Premises, Lessee shall remain liable and responsible under this Lease;
provided, however, that if this Lease shall continue in effect after the last
day of the initial term hereof and if the assignee shall have assumed in writing
the - performance of the covenants and obligations of Lessee hereunder, Lessee
shall not be liable or responsible to Lessor for any default or nonperformance
by such assignee as tenant hereunder arising or occurring after the last day of
the initial Term hereof.
Section 11.03. If Lessee assigns this Lease and shall remain liable hereunder,
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 the original
tenant first named hereinabove in this Lease ("the Original Lessee") and no
notice of default shall be effective until a copy thereof is received by the
Original Lessee. The Original Lessee shall have the same period after receipt of
such notice to cure such default as is given to Lessee under this Lease. If this
Lease terminates or this Lease and the term hereof ceases and expires because of
a default of such assignee after an assignment of this Lease shall have been
made, Lessor shall promptly give the Original Lessee notice thereof. The
Original Lessee shall have the option to be exercised by notifying Lessor within
twenty (20) days after receipt by the Original Lessee of Lessor's notice, to
cure any default and become tenant under a new lease for the remainder of the
term of this
Lease (including any renewal periods) upon all of the same terms and conditions
as then remain under this Lease as it may have been amended by agreement between
Lessor and Original Lessee. If any default of such assignee is incapable of
being cured by the Original Lessee, then, notwithstanding the failure to cure
same, the Original Lessee shall have the foregoing option to enter into a new
lease. Such new lease shall commence on the date of termination of this Lease.
Notwithstanding the foregoing, if Lessor delivers to the Original Lessee,
together with Lessor's notice, a release as to all liability under this Lease as
theretofore amended, the Original Lessee shall not have the foregoing option.
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
minimum 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.
A. If less than all of the Leased Premises shall be taken in
condemnation proceedings, Lessor and Lessee shall mutually determine, within a
reasonable time after such taking, whether the remaining building or buildings
(after necessary repairs and reconstruction to constitute the same a complete
architectural unit or units) can economically and feasibly be used and subleased
by Lessee. If Lessor and Lessee cannot mutually agree upon such matter within
ninety (90) days after notice of intent to take, the same shall be determined
thereafter upon request of either party by arbitration in accordance with the
provisions of Section 18.11. In arriving at their decision, the arbitrators,
among other things, shall take into consideration whether such remaining
premises will produce a fair and reasonable net return to Lessor and will
produce a fair and reasonable profit to Lessee.
B. If it is determined either by mutual agreement or arbitration that
such remaining building or buildings cannot economically and feasibly be used by
Lessee, Lessor or Lessee, at its election, may terminate this Lease on ten (10)
days' notice to the other party to such effect, and the minimum 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. If between the taking
and the date of such termination, the condemning authority shall have entered
into physical possession of the condemned portion of the Leased Premises, the
Rental, during such period, shall be reduced to accommodate such event and any
dispute as to the amount of such reduction shall be determined by arbitration in
accordance with the provisions of Section 18.11. However, such election to
terminate must be exercised within thirty (30) days after the determination, as
aforesaid, that the remaining building or buildings cannot economically and
feasibly be used by Lessee.
Section 12.03. Application of Award. If this Lease shall terminate pursuant to
the provisions of Section 12.01 or Section 12.02 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.
▇. ▇▇▇▇▇▇ shall then be entitled to receive an amount equal to the
reasonable market value of the 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 18.11.
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 it is determined
pursuant to the provisions of Section 12.03, that the remaining Improvements
after a partial condemnation can be used economically by Lessee, (i) this Lease
shall not terminate but shall continue in full force and effect as to the
portion of the Leased Premises not taken, (ii) Lessee shall commence and proceed
with reasonable diligence to repair or reconstruct the remaining building or
buildings on the Leased Premises to a complete architectural unit or units to
the extent proceeds of the condemnation award are available therefor, and (iii)
the fixed annual rentals payable by Lessee hereunder shall be reduced during the
unexpired portion of this Lease to that proportion of the annual fixed results
herein reserved which the value of the part of the Leased Premises not so taken
bears to the value of the total of the Leased Premises, such values to be
determined as of the date when Lessee is disturbed in its possession as a result
of the taking. 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, including reasonable counsel fees, in collecting the awards.
B. The proceeds of the awards shall next be used as a fund for the
restoration of the building, improvements and equipment situated on the Leased
Premises to a complete architectural unit or units. Said proceeds shall be held
by Lessor and shall 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.
▇. ▇▇▇▇▇▇ 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, unencumbered by this Lease,
plus a sum of money equal to damages sustained by Lessor for severance damages
to the remaining and untaken portion of the Leased Premises, also unencumbered
by this Lease as to such remaining untaken portion of the Leased Premises.
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
minimum 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 Rental 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 (i) not less than the fair market value of the
Leased Premises taken at the time and (ii) a reasonable amount for any
diminution in value of the remaining portion.
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. If Lessee shall fail to pay any installment of the Rental or other sum
of money payable hereunder on the date the same is due and such failure shall
continue for a period of twenty (20) days after due written notice to Lessee.
B. If Lessee shall fail to comply with any term, provision or covenant of
this Lease, other than the payment of rent or other sums of money, and shall not
cure such failure within thirty (30) days after due 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. If a decree or order by a court of competent jurisdiction shall have
been entered 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. If Lessee or any sublessee, assignee, grantee or agent of Lessee shall
do or permit to be done 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. If Lessee shall become insolvent, make a transfer in fraud of
creditors, make an assignment for the benefit of creditors, file a proceeding in
bankruptcy, or if a receiver or trustee shall be appointed for Lessee or any of
the assets of Lessee.
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.
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 18.14 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 tenant space in the Leased Premises to be 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
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 or a
Leasehold Mortgagee in accordance with the terms of this Lease.
Section 13.07. New Lease with Leasehold Mortgagee Upon Termination. If this
Lease shall terminate by reason of the occurrence of any contingency mentioned
in Section 13.01 hereof, and in the manner therein set forth, and if Lessor
shall obtain possession of the Leased premises herefor, Lessor agrees that any
Leasehold Mortgagee shall have the right, for a period of thirty (30) days
subsequent to written notice of said termination of this Lease, to elect to
demand a new lease of the Leased premises of the character and, when executed
and delivered and possession of the Leased Premises is taken thereunder, having
the effect hereinafter set forth. Such new lease shall be for a term to commence
at the said termination of this Lease, as in this Section 13.01 provided, and
shall have as the date for the expiration thereof the same date stated in this
Lease as the date for the expiration thereof. The rent thereof shall be at the
same rate as would have been applicable during such term under the provisions of
this Lease, had this Lease as the date for the expiration thereof. The rent
therefor shall be at the same rate as would have been applicable during such
term under the provisions of this Lease, had this Lease not so expired or
terminated, and all the rents, covenants, conditions and provisions of such new
lease, including, but not limited to, the conditional limitations set forth in
this Lease, shall be the same as the terms, conditions and provisions of this
Lease. If any such Leasehold Mortgagee as aforesaid shall elect to demand such
new lease within such 30-day period, such Leasehold Mortgagee shall give written
notice to Lessor of such election; and, thereupon, within ten (10) days
thereafter, Lessor and such Leasehold Mortgagee agree to execute and deliver
such new lease upon the terms above set forth, and such Leasehold Mortgagee
shall, at the time of the execution and delivery of such new lease, pay to
Lessor all rent and additional rent and other sums which would have become
payable hereunder by Lessee to Lessor to the date of the execution and delivery
of such new lease, had this Lease not terminated, and which remain unpaid at the
time of the execution and delivery of such new lease, together with reasonable
attorneys fees and expenses in connection therewith. Any such new lease as
contemplated in this Section 13.07 may, at the option of the Leasehold
Mortgagee, be executed by a nominee of such holder, without the Leasehold
Mortgagee assuming the burdens and obligations of Lessee thereunder beyond the
period of its ownership of the leasehold estate created hereby.
Any Leasehold Mortgagee of less than all of the Leased Premises who elects
to demand a new lease pursuant to this section with respect to the part of the
Leased Premises as to which it has obtained possession shall, as a condition to
Lessor's obligation to grant such new lease, agree to guarantee the payment of
rental for all of the Leased Premises.
Section 13.08. Notice to Leasehold Mortgagee. Lessor agrees, if and so long as
the leasehold estate of Lessee is encumbered by a leasehold mortgage in favor of
a Leasehold Mortgagee, to give such Leasehold Mortgagee at such address or
addresses as may be specified by the Leasehold Mortgagee to Lessor in writing,
written notice of any default or of the happening of any contingency referred to
in Section 13.01 hereof, simultaneously with the giving of such notice to
Lessee, and no such notice to Lessee shall be effective or be deemed to have
been given to Lessee hereunder unless such notice is also given to the Leasehold
Mortgagee; and the Leasehold Mortgagee shall have the right, within the period
limited by any such notice and for an additional period of thirty (30) days
thereafter, and to the same extent and with the same effect as though done by
Lessee, to take such action or to make such payment as may be necessary or
appropriate to cure any such default or contingency so specified, it being the
intention of the parties hereto that Lessor shall not exercise its right to
terminate this Lease as in Section 13.01 provided without first affording to any
Leasehold Mortgagee the same rights and the same notices with respect to any
such default or contingency and the same period or periods of time within which
to cure the same, including the right to enter into possession of the Leased
Premises, to enable the Leasehold Mortgagee also to do, as are afforded to
Lessee hereunder (and a period of thirty (30) days thereafter, and as are
afforded to the leasehold mortgagee under this Section 13.08).
Section 13.09. Foreclosure by Leasehold Mortgagee. Anything in this Lease and
specifically in this Article XI to the contrary notwithstanding, Lessor shall
not be entitled to exercise its right to terminate this Lease as in this Article
XIII provided during the period that any Leasehold Mortgagee shall require to
foreclose its mortgage or otherwise to fulfill or complete its remedies under
such leasehold mortgage or to cure any Event of Default, provided, however, that
such period shall in no event exceed ninety (90) days and that within such
period of time: (a) such Leasehold Mortgagee proceeds promptly and with due
diligence with its remedies under its mortgage on the leasehold estate and
thereafter prosecutes the same with all due diligence; and (b) there is timely
paid to Lessor the rent, additional rent and other sums which have, or may,
become due and payable during said period of time and as the same become due and
payable, and all other terms and provisions of this Lease are duly complied
with.
Section 13.10. No Voluntary Surrender of Leasehold Estate Without Consent of
Leasehold Mortgagee. So long as there exists any unpaid or undischarged
Leasehold Mortgage on the estate of Lessee created hereby, Lessor expressly
agrees for the benefit of such Leasehold Mortgagee that it will not accept a
voluntary surrender of the Leased Premises or a cancellation of this Lease from
Lessee prior to the termination of this Lease without the written consent of the
Leasehold Mortgagee, and Lessor and Lessee hereby agree for the benefit of any
Leasehold Mortgagee that they will not subordinate this Lease to any mortgage
that may hereafter be placed on the fee or amend or alter any terms or
provisions of this Lease or consent to any prepayment of any rental or
additional rental without securing the written consent
thereto of any such Leasehold Mortgagee. Nothing contained herein shall be
construed to limit the right of Lessor to sell or pledge its rights hereunder,
including but not limited to the right to receive rent pursuant to Article IV
hereof, without the prior consent or permission of any person.
ARTICLE XIV
Leasehold Mortgage
Section 14.01. Rights of Leasehold Mortgagee.
A. Lessee may, without Lessor's consent, mortgage, pledge, grant deeds of
trust, or otherwise encumber the leasehold estate created hereby and all or any
portion of the right, title and interest of Lessee hereunder, and assign,
hypothecate or pledge the same, as security for the payment of any debt to any
holder or beneficiary of a deed of trust or mortgage securing the payment of
indebtedness to Leasehold Mortgagee; provided, that no mortgagee, trustee, or
other person claiming by, through or under any instrument creating any such
encumbrance shall by virtue thereof acquire any greater right in the Leased
Premises than Lessee then had under this Lease, except for the right expressly
granted to such mortgagee, trustee or other person under the terms of this
Lease; and provided further, that such mortgage, deed of trust or other
instrument of encumbrance, and the indebtedness secured thereby, shall at all
times be and remain subject to all of the conditions, covenants and obligations
of this Lease and to all of the rights of Lessor hereunder. As to any such
Leasehold Mortgage Lessor consents to provisions therein, at the option of
Lessee, (a) for an assignment of Lessee's share of the net proceeds from any
award or other compensation resulting from a total or partial (other than
temporary) taking as set forth in Article X of this Lease, (b) for the entry of
any Leasehold Mortgagee upon the Leased Premises during business hours, without
notice to Lessor or Lessee, to view the state of the Leased Premises, (c) that a
default by Lessee under this Lease shall constitute a default under any such
leasehold mortgage, (d) for an assignment of Lessee's right, if any, to
terminate, cancel, modify, change, supplement, alter or amend this Lease, (e)
for an assignment of any sublease to which any such leasehold mortgage is
subordinated, subject to the rights of Lessor hereunder, and (f) effective upon
any default in any such leasehold mortgage, (i) for the foreclosure of the
Leasehold Mortgage pursuant to a power of sale by judicial proceedings or other
lawful means and the subsequent sale of the leasehold estate to the purchaser at
the foreclosure sale and a sale by such purchaser or a sale by any subsequent
purchaser, (ii) for the appointment of a receiver, irrespective of whether any
Leasehold Mortgagee accelerates the maturity of all indebtedness secured by the
Leasehold Mortgage, (iii) for the rights of the Leasehold Mortgagee or the
receiver to enter and take possession of the Leased Premises, to manage and
operate the same, to collect the subrentals, issues and profits therefrom
(subject to the rights of Lessor hereunder), and to cure any default under the
Leasehold Mortgage or any default by Lessee under this Lease, and (iv) for an
assignment of Lessee's right, title and interest in and to the premiums for or
dividends upon any insurance required by the terms of this Lease, as well as in
all refunds or rebates of taxes or assessments upon or other charges against the
Leased Premises, whether paid or to be paid.
B. If at any time after the execution and recordation of any such mortgage or
deed of trust, the mortgagee or trustee therein shall notify Lessor in writing
that any such mortgage or deed of trust has been given and executed by Lessee,
and shall at the same time furnish Lessor with the address to which it desires
copies of notices to be mailed, or designate some person or corporation as its
agent and representative for the purpose of receiving copies of notices, Lessor
hereby agrees that it will thereafter mail to such mortgagee or trustee and to
the agent or representative so designated by such mortgagee or trustee, at the
address so given, duplicate copies of any and all notices in writing which
Lessor may from time to time give or serve upon Lessee under and pursuant to the
terms and provisions of this Lease.
Section 14.02. Liability of Leasehold Mortgagee. No Leasehold Mortgagee shall be
or become liable to Lessor as an assignee of this Lease or otherwise until it
expressly assumes by written instrument such liability, and no assumption shall
be inferred or result from foreclosure or other appropriate proceedings in the
nature thereof or as the result of any other action or remedy provided for by
any mortgage or deed of trust or other instrument executed in connection with
such leasehold mortgage or from a conveyance from Lessee pursuant to which the
purchaser at foreclosure or grantee shall acquire the rights and interests of
Lessee under the terms of this Lease.
ARTICLE XV
Attorney's Fees; 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 upon 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 18.06 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 a financing statement 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
state 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 leasehold
interest in the Leased Premises or in equipment or other property located
thereon, and Lessor agrees to execute such additional documents as shall be
necessary to effect or evidence such subordination.
ARTICLE XVI
Renewal Options
Section 16.01 Option to Renew. Lessee shall have, and is hereby given, three
(3) five (5) year options (the "Options") to renew and to extend the Term of
this Lease, such Options to follow consecutively upon the expiration of the Term
of this Lease, provided that at the time that each option to renew is
exercised, this Lease shall be in full force and effect and Lessee
shall not be in default hereunder. Each Option shall be for a term of
five (5) years (the "Renewal Terms"). The Option shall be exercised by
Lessee's giving to Lessor written notice of its intention to renew and extend
the Term of this Lease at least three (3) months before the expiration
date of the initial Term of this Lease and any Renewal Term thereof. The
renewal and extension of this Lease for the Renewal Term shall be on and under
the same covenants, agreements, terms, provisions and conditions as are
contained herein for the initial Term of this Lease, except that rental shall be
computed in the manner set forth in Section 16.02 below. Any termination of
this Lease during the initial Term shall terminate all rights of renewal and
extension set forth herein.
Section 16.02. Adjustment to Monthly Rental. Commencing with the first (1st)
day of the first (1st) calendar month of each Renewal Term, the applicable
rental for each calendar month for each Renewal Term 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 (1st)
month of the Renewal Term exceeds the Consumer Price Index in May 1987;
provided, however, that in no event shall such adjusted rental for the Renewal
Term 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 XVII
Right of First Refusal
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) day 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 XVII shall
be reinstated, and any such subsequent sale or transfer shall be subject
to this right. Any sale or transfer contemplated by this Article XVII 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.
ARTICLE XVIII
Miscellaneous
Section 18.01. 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 18.02. 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 18.02 may be relied upon by a prospective purchaser or encumbrancer
(including assignees) of the Leased Premises.
Section 18.03. 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 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 18.04. 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 rate of twelve
percent (12.0%) per annum, shall be payable by Lessee to Lessor on demand.
Section 18.05. Non-Merger. Unless agreed to in writing by such person, there
shall be no merger of this Lease, the leasehold estate created hereby or the
Improvements with the fee state 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 either thereof, 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 upon the fee estate in and to
the Leased Premises, shall join in a written instrument effecting such merger.
Section 18.06. Notices. Any notice to be given or to be served in connection
with this Lease must be in writing, and may be given by certified or registered
mail and shall be deemed to have been given and received forty-eight (48) hours
after a certified or registered letter containing such notice, properly
addressed, with postage prepaid is deposited in the United States Mail,
addressed as follows:
If to Lessor:
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If to Lessee:
FFP Partners, L.P.
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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 18.06.
Section 18.07. Successors and Assigns. 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 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 to the interest and estate of Lessee
hereby created in the Leased Premises. Lessee shall have the right to assign
this Lease to any person or entity.
Section 18.08. Modifications. This Lease may be modified only by written
agreement signed by the Lessor and Lessee.
Section 18.09. 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 18.10. 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 18.11. 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 18.12. 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 18.13. 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 18.14. Holding Over. Subject to the rights and remedies of Lessor as set
forth in Section 11.02 hereof and in addition thereto, 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 under Section 4.01 hereof 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 (a) a holdover agreement in
writing specifies a longer period or (b) 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 18.15. Lessor Default. In the event 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.
Section 18.16. 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 or discharge (by discharge, by bonding or otherwise) all
valid mechanic's liens filed against the Leased Premises by reasons of any
construction by Lessor.
Section 18.17. 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 18.18. Net Lease. It is understood and agreed that this Lease Agreement
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 18.19. Venue. This Lease is entered into in Tarrant County, Texas, and
is performable and enforceable in that county.
IN WITNESS WHEREOF, the parties have executed this instrument the day and year
first above written.
LESSOR:
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By:
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Address:
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LESSEE:
FFP OPERATING PARTNERS, L.P.
BY: FFP PARTNERS MANAGEMENT
COMPANY, INC.
By:
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Address:
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THE STATE OF TEXAS (S)
(S)
COUNTY OF TARRANT (S)
This instrument was acknowledged before me on this ____ day of May, 1987 by
________________________________________________________________.
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Notary Public, State of Texas
Commission Expires:
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Printed Name:
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THE STATE OF TEXAS (S)
(S)
COUNTY OF TARRANT (S)
This instrument was acknowledged before me on this ____ day of May, 1987 by
______________________________________________________________________________,
___________________________________ of FFP Partners Management Company, Inc., a
Delaware corporation, on behalf of said corporation and in the capacity therein
stated.
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Notary Public, State of Texas
Commission Expires:
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Printed Name:
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ASSIGNMENT OF GROUND LEASE
AND ASSUMPTION AGREEMENT
That the undersigned, FFP Partners, L.P., a Delaware limited partnership
("Assignor"), does hereby assign, transfer and convey unto FFP Operating
Partners, L.P., a Delaware limited partnership, all of its rights under the
foregoing Ground Lease Agreement.
In consideration of the foregoing assignment, FFP Operating Partners, L.P. does
hereby assume all obligations of Assignor under Ground Lease Agreement, agrees
to perform all obligations of Assignor under the terms of the Ground Lease
Agreement, and agrees to indemnify and hold Assignor harmless from any and all
liabilities, claims, causes of action, costs and expenses in any manner relating
to the Ground Lease Agreement.
EXECUTED this ______ day of May, 1987.
FFP PARTNERS, L.P.
BY: FFP PARTNERS MANAGEMENT
COMPANY, INC.
By:
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ASSIGNOR
FFP OPERATING PARTNERS, L.P.
BY: FFP PARTNERS MANAGEMENT
COMPANY, INC.
By:
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