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EXHIBIT 1.1
125,000 Shares
U.S. RESTAURANT PROPERTIES, INC.
Common Stock
$0.001 Par Value
UNDERWRITING AGREEMENT
September 17, 1998
EVEREN SECURITIES, INC.
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Dear Ladies and Gentlemen:
U.S. Restaurant Properties, Inc., a Maryland corporation (the
"Company"), confirms its agreement as set forth below with the Underwriters
named in SCHEDULE A hereto (the "Underwriters"). If EVEREN Securities, Inc. is
the only Underwriter, all references herein to the Underwriters shall be deemed
to be to EVEREN Securities, Inc.
1. DESCRIPTION OF SHARES.
(a) The Company proposes to issue and sell to the
Underwriters, severally and not jointly, 125,000 shares of Common Stock, par
value $0.001 per share (the "Common Stock"). The shares of Common Stock to be
issued and sold by the Company are hereinafter referred to as the "Firm Shares."
(b) In addition, the Company is granting to the Underwriters
an option to purchase up to an additional 18,750 shares of Common Stock on the
terms and for the purposes set forth in Section 12 hereof (the "Option Shares"
and, together with the Firm Shares, the "Shares").
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to and agrees with the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-34263),
with respect to the Shares, including a prospectus, has been prepared by the
Company in conformity with the requirements of the Securities Act of 1933, as
amended (the "Act"), and the rules and regulations (the "1933 Act Rules and
Regulations") of the Securities and Exchange Commission (the "Commission")
thereunder, has been filed with the Commission and has been declared effective.
Such registration statement and prospectus may have been amended or supplemented
prior to the
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date of this Underwriting Agreement; any such amendment or supplement was so
prepared and filed, and any such amendment filed after the effective date of
such registration statement has been declared effective. No stop order
suspending the effectiveness of such registration statement has been issued, and
no proceeding for that purpose has been instituted or threatened by the
Commission. A prospectus supplement (the "Prospectus Supplement") setting forth
the terms of the offering, sale and plan of distribution of the Shares and
additional information concerning the Company and its business has been or will
be so prepared and will be filed pursuant to Rule 424(b) of the 1933 Act Rules
and Regulations on or before the second business day after the date hereof (or
such earlier time as may be required by the 1933 Act Rules and Regulations).
Copies of such registration statement and prospectus, any such amendments or
supplements and all documents incorporated by reference therein that were filed
with the Commission on or prior to the date of this Underwriting Agreement
(including one fully executed copy of the registration statement and of each
amendment thereto for the Underwriters and their counsel) have been delivered to
the Underwriters and Underwriters' counsel. The registration statement, as it
may have heretofore been amended, is referred to herein as the "Registration
Statement," and the final form of prospectus included in the Registration
Statement, as supplemented by the Prospectus Supplement, is referred to herein
as the "Prospectus." Any reference herein to the Registration Statement, the
Prospectus, any preliminary prospectus or any amendment or supplement thereto
shall be deemed to refer to and include the documents incorporated by reference
therein, and any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement, the Prospectus or any
preliminary prospectus shall be deemed to refer to and include the filing after
the execution hereof of any document with the Commission deemed to be
incorporated by reference therein. For purposes of this Underwriting Agreement,
all references to the Registration Statement, the Prospectus, any preliminary
prospectus or to any amendment or supplement thereto shall be deemed to include
any copy filed with the Commission pursuant to its Electronic Data Gathering
Analysis and Retrieval System (XXXXX), and such copy shall be identical in
content to any Prospectus delivered to the Underwriters for use in connection
with the offering of the Shares.
(b) Each part of the Registration Statement, when such part
became or becomes effective, and the Prospectus and any amendment or supplement
thereto, on the date of filing thereof with the Commission and at the Closing
Date (as hereinafter defined), and, if later, at an Option Closing Date (as
hereinafter defined), conformed or will conform in all material respects with
the requirements of the Act and the 1933 Act Rules and Regulations; each part of
the Registration Statement, when such part became or becomes effective, or when
such part was filed with the Commission, did not or will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; the
Prospectus and any amendment or supplement thereto, on the date of filing
thereof with the Commission and at the Closing Date, and, if later, at an Option
Closing Date, did not or will not include an untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
except that the foregoing shall not apply to statements in, or omissions from,
any such document in reliance upon, and in conformity with, written information
concerning the Underwriters that was furnished to the Company by the
Underwriters specifically for use in the preparation thereof.
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(c) The documents incorporated by reference in the
Registration Statement, the Prospectus or any amendment or supplement thereto,
when they became or become effective under the Act or were or are filed with the
Commission under the Act or the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as the case may be, conformed or will conform in all material
respects with the requirements of the Act, the 1933 Act Rules and Regulations,
the Exchange Act and/or the rules and regulations of the Commission under the
Exchange Act (the "Exchange Act Rules and Regulations"), as applicable.
(d) The consolidated financial statements of the Company,
together with the related schedules and notes thereto, set forth or included or
incorporated by reference in the Registration Statement and Prospectus fairly
present the financial condition of the Company and its consolidated subsidiaries
as of the dates indicated and the results of operations, changes in financial
position, stockholders' equity and cash flows for the periods therein specified,
in conformity with generally accepted accounting principles consistently applied
throughout the periods involved (except as otherwise stated therein). The
summary and selected financial and statistical data included or incorporated by
reference in the Registration Statement and the Prospectus present fairly the
information shown therein and, to the extent based upon or derived from the
financial statements, have been compiled on a basis consistent with the
financial statements presented therein. In addition, the pro forma financial
statements of the Company, and the related notes thereto, included or
incorporated by reference in the Registration Statement and the Prospectus
present fairly the information shown therein, have been prepared in accordance
with the Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the basis described therein, and
the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions and
circumstances referred to therein. Furthermore, all financial statements
required by Rule 3-14 of Regulation S-X ("Rule 3-14") have been included or
incorporated by reference in the Registration Statement and the Prospectus and
any such financial statements are in conformity with the requirements of Rule
3-14. No other financial statements are required to be set forth or to be
incorporated by reference in the Registration Statement or the Prospectus under
the Act or the 1933 Act Rules and Regulations thereunder.
(e) Deloitte & Touche LLP, whose reports are incorporated by
reference in the Registration Statement, are and, during the periods covered by
their reports, were independent public accountants as required by the Act and
the 1933 Act Rules and Regulations.
(f) The Company has been duly formed and is validly existing
as a corporation in good standing under the laws of the State of Maryland, is
duly qualified to do business and is in good standing in each jurisdiction in
which its ownership or lease of property or the conduct of its business requires
such qualification, and has full corporate power and authority necessary to own
or hold its properties, to conduct the business in which it is engaged and to
enter into and perform its obligations under this Underwriting Agreement. Except
for the Subsidiaries (as hereinafter defined), the Company owns no direct or
indirect equity or other beneficial interest in any corporation, partnership,
joint venture or other business entity.
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(g) U.S. Restaurant Properties Operating L.P., a Delaware
limited partnership subsidiary of the Company (the "Operating Partnership"), has
been duly formed and is validly existing as a limited partnership under the laws
of the State of Delaware, is duly qualified to do business as a foreign limited
partnership in each jurisdiction in which its ownership or lease of property or
the conduct of its business requires such qualification (except where the
failure to be so qualified would not have a material adverse effect on the
earnings, assets or business affairs of the Company and its Subsidiaries taken
as a whole), and has all partnership power and authority necessary to own or
hold its properties and its interests in its subsidiaries, to conduct the
business in which it is engaged and to enter into and perform its obligations
under this Underwriting Agreement. USRP Managing, Inc., a wholly-owned Delaware
corporate subsidiary of the Company ("USRP Managing"), is the sole general
partner of the Operating Partnership. The Agreement of Limited Partnership of
the Operating Partnership (the "Operating Partnership Agreement") is in full
force and effect, and the aggregate percentage interests of the Company, USRP
Managing and the limited partners in the Operating Partnership are as set forth
in the Prospectus. To the extent the Shares are issued in accordance with this
Underwriting Agreement, (i) the percentage interest of the partners in the
Operating Partnership will be adjusted accordingly and (ii) the Company will
contribute the proceeds from the sale of the Shares to the Operating Partnership
in exchange for a number of units equal to the number of Shares issued.
(h) USRP Managing has been duly formed and is validly existing
as a corporation in good standing under the laws of the State of Delaware, is
duly qualified to do business and is in good standing in each jurisdiction in
which its ownership or lease of property or the conduct of its business requires
such qualification (except where the failure to be so qualified would not have a
material adverse effect on the earnings, assets or business affairs of the
Company and its Subsidiaries taken as a whole), and has all corporate power and
authority necessary to own or hold its assets, to conduct the business in which
it is engaged and to enter into and perform its obligations under this
Underwriting Agreement. All of the issued and outstanding capital stock of USRP
Managing has been duly authorized and validly issued and is fully paid and
non-assessable, is owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim, restriction or equities and has been
offered and sold in compliance with all applicable laws (including, without
limitation, federal or state securities laws). No shares of capital stock of
USRP Managing are reserved for any purpose, and there are no outstanding
securities convertible into or exchangeable for any capital stock of USRP
Managing, and no outstanding options, rights (preemptive or otherwise) or
warrants to purchase or to subscribe for shares of such capital stock or any
other securities of USRP Managing.
(i) All of the subsidiaries (as defined in the 1933 Act Rules
and Regulations) of the Company, including the Operating Partnership and USRP
Managing, are listed on SCHEDULE B hereto (collectively, the "Subsidiaries").
Each of the Subsidiaries has been duly incorporated or formed, as the case may
be, and is an existing corporation, general or limited partnership, or other
legal entity, as the case may be, in good standing under the laws of its
jurisdiction of incorporation or formation, as the case may be. Each of the
Subsidiaries has full power (corporate and other) and authority to own or hold
its properties and to conduct the business in which it is engaged, and is duly
qualified or registered to do business in each jurisdiction in which it owns or
leases real property or in which the conduct of its business requires such
qualification or registration, except where the
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failure to be so qualified or registered, considering all such cases in the
aggregate, would not have a material adverse effect on the business, properties,
financial position or results of operations of the Company and its Subsidiaries
taken as a whole.
(j) All of the issued and outstanding capital stock or
ownership interests of each Subsidiary have been duly authorized and are validly
issued, fully paid and nonassessable and, except for the 8% limited partner
interest in the Operating Partnership which is owned by QSV Properties, Inc.
("QSV") and the .02% limited partnership interests in the Operating Partnership
which are owned by certain Sellers of properties to the Operating Partnership,
is wholly owned by the Company, directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(k) All of the issued and outstanding shares of capital stock
of the Company have been duly authorized and are validly issued, fully paid and
nonassessable and conform to the description thereof in the Registration
Statement and the Prospectus. The stockholders of the Company have no preemptive
rights with respect to the Shares.
(l) The Shares will be as of the Closing Date, and the Option
Shares will be as of any Option Closing Date, duly authorized by the Company for
issuance and sale pursuant to this Underwriting Agreement; and when issued and
delivered by the Company pursuant to this Underwriting Agreement against payment
of the consideration therefor specified herein, will be validly issued, fully
paid and nonassessable. The Shares conform to the description thereof in the
Registration Statement and the Prospectus.
(m) Except as contemplated in the Prospectus, subsequent to
the respective dates as of which information is given in the Registration
Statement and the Prospectus, the Company and its Subsidiaries have not incurred
any liabilities or obligations, direct or contingent, or entered into any
transactions, not in the ordinary course of business, that are material to the
Company and its Subsidiaries on a consolidated basis; and there has not been any
material change in the capital stock or structure, short-term debt or long-term
debt of the Company and its Subsidiaries; or any material adverse change, or any
development that is reasonably likely to involve a prospective material adverse
change, in the condition (financial or other), business, prospects, net worth or
results of operations of the Company and its Subsidiaries on a consolidated
basis; and, except for regular dividends on the Company's common stock, par
value $0.001 per share (the "Common Stock") and for regular dividends on the
Company's $1.93 Series A Cumulative Convertible Preferred Stock (the "Preferred
Stock"), in amounts per share that are consistent with past practice or the
charter documents of the Company, there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its capital
stock.
(n) Except as set forth in the Prospectus, there is not
pending or, to the knowledge of the Company, threatened any litigation, action,
suit or proceeding to which the Company, any of its Subsidiaries or any of its
officers or directors is a party, or that any of its properties or other assets
is the subject of, before or by any court or governmental agency or body, that
is reasonably likely to result in any material adverse change in the condition
(financial or other), business, prospects, net
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worth or results of operations of the Company and its Subsidiaries, or might
materially and adversely affect their properties or other assets.
(o) During the period of at least the last 24 calendar months
prior to the date of this Underwriting Agreement, the Company has timely filed
with the Commission all documents and other material required to be filed
pursuant to Sections 13, 14 and 15(d) under the Exchange Act. During the period
of at least the last 36 calendar months preceding the filing of the Registration
Statement, the Company has filed all reports required to be filed pursuant to
Sections 13, 14 and 15(d) under the Exchange Act. Immediately preceding the
filing of the Registration Statement, the aggregate market value of the
Company's voting stock held by non-affiliates of the Company was equal to or
greater than $150 million.
(p) There are no contracts or documents of the Company that
are required to be filed as exhibits to the Registration Statement or to any of
the documents incorporated by reference therein by the Act or the Exchange Act
or by the 1933 Act Rules and Regulations and the Exchange Act Rules and
Regulations that have not been so filed. All of the contracts to which any of
the Company or its Subsidiaries is a party (i) have been duly authorized,
executed and delivered by such entity, constitute valid and binding agreements
of such entity and are enforceable against such entity in accordance with the
terms thereof, except as such enforcement may be limited by (A) bankruptcy,
insolvency, reorganization or similar other laws affecting creditors' rights
generally and (B) general equity principles and limitations on the availability
of equitable relief or (ii) in the case of any contract to be executed on or
before the Closing Date, will on the Closing Date be duly authorized, executed
and delivered by the Company and/or a Subsidiary, and constitute valid and
binding agreements of such entity enforceable against each entity in accordance
with the terms thereof, except as such enforcement may be limited by (A)
bankruptcy, insolvency, reorganization or similar other laws affecting
creditors' rights generally and (B) general equity principles and limitations on
the availability of equitable relief.
(q) The Company has full corporate power and authority to
enter into this Agreement. This Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(r) The execution and performance of this Underwriting
Agreement and the consummation of the transactions contemplated herein will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, (i) any agreement or instrument to which the Company
or its Subsidiaries is a party or by which they are bound or to which any of the
property or other assets of the Company or its Subsidiaries is subject, (ii) the
articles of incorporation, charter, by-laws, certificate of general or limited
partnership, partnership agreement or other organizational document, as
applicable, of the Company or its Subsidiaries, or (iii) to the best of the
Company's knowledge, any statute, order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or its
Subsidiaries or any of their properties or other assets; no consent, approval,
authorization or order of, filing with, or notice to any court or governmental
agency or body is required for the consummation of the transactions contemplated
by this Underwriting Agreement in connection with the issuance or sale of the
Shares by the Company, except such as may be required under the Act and
applicable state securities, blue sky, or real estate
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syndication laws, if any, or pursuant to the listing requirements of the New
York Stock Exchange ("NYSE") and the Company has full power and authority to
authorize, issue and sell the Shares as contemplated by this Underwriting
Agreement, free of any preemptive rights. The issuance of the Shares will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement, bond, debenture, note agreement, evidence of indebtedness, contract
or other agreement or instrument to which the Company or its Subsidiaries are a
party.
(s) The Company and its Subsidiaries have complied in all
respects with all laws, regulations and orders applicable to them or their
respective businesses; the Company and its Subsidiaries are not in default under
any indenture, mortgage, deed of trust, voting trust agreement, loan agreement,
bond, debenture, note agreement or evidence of indebtedness, lease, contract or
other agreement or instrument to which they are a party or by which they or any
of their properties or other assets are bound, violation of which would
individually or in the aggregate have a material adverse effect on the Company
and its Subsidiaries on a consolidated basis, and no other party under any such
agreement or instrument to which the Company or its Subsidiaries are a party is,
to the knowledge of the Company, in default in any material respect thereunder;
and the Company and its Subsidiaries are not in violation of their respective
articles of incorporation, charter, by-laws, certificate of general or limited
partnership, partnership agreement or other organizational documents, as the
case may be.
(t) Except for those properties listed on SCHEDULE C below as
being subject to leases, the Company and each of its Subsidiaries have good and
marketable title to all properties and assets, as described in the Prospectus,
owned by them, free and clear of all liens, charges, encumbrances, claims,
restrictions or defects, except such as are described in the Prospectus or are
not material in relation to the business or operations of the Company and its
Subsidiaries, and the Company and its Subsidiaries have valid, subsisting and
enforceable leases for the properties listed on SCHEDULE C hereto as leased to
the Company and its Subsidiaries, with such exceptions as are not material and
do not interfere with the use made and proposed to be made of such properties by
the Company and its Subsidiaries; all liens, charges, encumbrances, claims or
restrictions on or affecting any of the properties or the assets of the Company
and its Subsidiaries which are required to be disclosed in the Prospectus are
disclosed therein; except for the tenants listed on SCHEDULE D hereto, no tenant
under any of the leases pursuant to which the Company or its Subsidiaries lease
their properties has an option or right of first refusal to purchase the
premises demised under such lease; to the best of the Company's knowledge, the
use and occupancy of each of the properties of the Company and its Subsidiaries
complies in all material respects with all applicable codes and zoning laws and
regulations; the Company and its Subsidiaries have no knowledge of any pending
or threatened condemnation or zoning change that will in any material respect
affect the size of, use of, improvement of, construction on, or access to any of
the properties of the Company and its Subsidiaries; and the Company and its
Subsidiaries have no knowledge of any pending or threatened proceeding or action
that will in any manner materially affect the size of, use of, improvements or
construction on, or access to any of the properties of the Company or its
Subsidiaries.
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(u) Title insurance in favor of the Company and its
Subsidiaries is maintained with respect to each of the properties described in
the Prospectus in an amount at least equal to the cost of acquisition of such
property.
(v) The mortgages and deeds of trust encumbering the
properties and assets described or referred to in the Prospectus are not
convertible into the equity securities of the Company or any Subsidiary.
(w) Except as would not, singularly or in the aggregate, have
a material adverse effect on the condition (financial or otherwise) or the
earnings, business affairs or business prospects of the Company or any of its
Subsidiaries, (i) there does not exist on any of the properties described in the
Prospectus any Hazardous Materials (as hereinafter defined) in unlawful
quantities, (ii) there has not occurred on or off such properties any unlawful
spills, releases, discharges or disposal of Hazardous Materials and (iii) the
Company and its Subsidiaries have not failed to comply with all applicable
local, state and federal environmental laws, regulations, ordinances and
administrative and judicial orders relating to the generation, recycling, sale,
storage, handling, transport and disposal of any Hazardous Materials.
As used herein, "Hazardous Material" shall include, without
limitation, any flammable explosives, radioactive materials, oil, petroleum,
petroleum products, hazardous materials, hazardous wastes, hazardous or toxic
substances, asbestos or any material as defined by any environmental laws,
including, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et
seq.) (CERCLA), the Hazardous Materials Transportation Act, as amended (49
U.S.C. Section 1801, ET SEQ.), the Resource Conservation and Recovery Act, as
amended (42 U.S C. Section 9601, et seq.), and in the regulations adopted
pursuant to each of the foregoing or by any Federal, state or local governmental
authority having jurisdiction over the properties as described in the
Prospectus.
Except for the 123 Burger King properties in the Company's
portfolio at the time current management took control in May 1994, all of the
properties have been, and it is contemplated that all future acquisitions will
be, subjected to a Phase I or similar environmental assessment (which generally
includes a site inspection, interviews and a records review, but no subsurface
sampling). These assessments and certain follow-up investigations (including, as
appropriate, asbestos, radon and lead surveys, additional public records review,
subsurface sampling and other testing) of the properties have not revealed any
environmental liability that the Company believes would have a material adverse
effect upon the business, results of operations, prospects or condition
(financial or otherwise) of the Company or any of its Subsidiaries.
(x) Property and casualty insurance in favor of each of the
Company and its Subsidiaries is maintained with respect to each of the
properties owned or leased by each of them in an amount and on such items as is
reasonable and customary for businesses of this type.
(y) Each national, regional or local restaurant brand or
franchise identified in the Prospectus as a brand or franchise being operated on
a property is in actual operation on such property. Except as described in the
Prospectus, each tenant (a "Tenant") of a property owned or
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leased by the Company is in actual possession of such property under a lease to
such Tenant (each, a "Lease"). Except as disclosed in the Prospectus, each Lease
is in full force and effect and neither the Company nor any of its Subsidiaries
has notice of any defense to the obligations of the Tenant thereunder or any
claim asserted or threatened by any person or entity, which claim would have a
material adverse effect upon the business, results of operations, prospects or
condition (financial or otherwise) of the Company or any of its Subsidiaries. To
the knowledge of the Company, no Tenant of any of the properties is in default
under any of the Leases governing such properties and there is no event which,
but for the passage of time or the giving of notice, or both, would constitute a
material default under any of such Leases.
(z) Except as disclosed in SCHEDULE E hereto, all Leases with
Tenants are "triple net leases" and generally provide that the Tenant is
responsible for property operating costs, including property taxes, insurance
and maintenance.
(aa) Except as specifically disclosed in the Prospectus, there
is no material defect in the condition of any property, the improvements
thereon, the structural elements thereof, or the mechanical systems therein, nor
any material damage from casualty or other cause, nor any soil condition of any
such property that will not support all of the improvements thereon without the
need for unusual or new subsurface excavations, fill, footings, caissons or
other installations, except for (a) ordinary wear and tear and (b) any such
defect, damage or condition that has been corrected or will be corrected in the
ordinary course of the business of such property as part of the Company's
scheduled annual maintenance and improvement program.
(ab) No holder of outstanding shares of capital stock of the
Company has any rights to the registration of shares of capital stock of the
Company which would or could require such securities to be included in the
Registration Statement.
(ac) Subsequent to the respective dates as of which
information is given, or incorporated by reference, in the Registration
Statement and the Prospectus, except as described therein, (i) there has not
been any material adverse change in the assets or properties, business, results
of operations, prospects or condition (financial or otherwise) of the Company or
any of its Subsidiaries, whether or not arising from transactions in the
ordinary course of business; (ii) neither the Company nor any of its
Subsidiaries has sustained any material loss or interference with its assets,
businesses or properties (whether owned or leased) from fire, explosion,
earthquake, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or any court or legislative or other governmental action,
order or decree; and (iii) neither the Company nor any of its Subsidiaries has
undertaken any liability or obligation, direct or contingent, except such
liabilities or obligations undertaken in the ordinary course of business.
(ad) The Company has filed all federal, state, local,
franchise and foreign income tax returns which have been required to be filed
and has paid all taxes indicated by said returns and all assessments received by
it to the extent that such taxes have become due, and the Company has no
knowledge, after due inquiry, of any tax deficiency which has been asserted or
threatened against the Company. To the knowledge of the Company, there are no
tax returns of the Company or any of its Subsidiaries that are currently being
audited by state, local or federal taxing authorities or
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agencies which would have a material adverse effect on the financial position,
stockholders' equity, results of operations, business or prospects of the
Company and its Subsidiaries.
(ae) Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory, administrative or
other governmental body necessary in connection with the execution and delivery
by the Company of this Underwriting Agreement and the consummation of the
transactions herein contemplated has been obtained or made and is in full force
and effect.
(af) The Company and its Subsidiaries hold all material
licenses, certificates and permits from governmental authorities which are
necessary to the conduct of their businesses and are in compliance with the
terms and conditions of such licenses, certificates and permits; and the Company
and its Subsidiaries have not infringed on any patents, patent rights, trade
names, trademarks or copyrights, which infringement is material to the business
of the Company and its Subsidiaries taken as a whole.
(ag) The Company and its Subsidiaries are conducting their
respective businesses in material compliance with all applicable laws, rules and
regulations of the jurisdictions in which they are conducting business,
including, without limitation, the Americans with Disabilities Act of 1990 and
all applicable local, state and federal employment, truth-in-advertising,
franchising and immigration laws and regulations, except where the failure to be
so in compliance would not have a material adverse effect on the assets or
properties, business, results of operations, prospects or condition (financial
or otherwise) of the Company and its Subsidiaries taken as a whole.
(ah) No transaction has occurred between or among the Company
and any of its officers or directors or any affiliate or affiliates of any such
officer or director that is required to be described in and is not described or
incorporated by reference in the Registration Statement and the Prospectus.
(ai) The Company has not taken, nor will it take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of any
capital stock of the Company or the Series A Preferred Stock to facilitate the
sale or resale of any of the Shares.
(aj) The Company is organized and operated in conformity with
the requirements for qualification as a "real estate investment trust" under the
Internal Revenue Code of 1986, as amended (the "Code"), and the rules and
regulations thereunder. The Company's method of operation will permit it to
continue to meet the requirements for taxation as a real estate investment trust
under the Code. The Company has no intention of changing its operations or
engaging in activities which would cause it to fail to qualify, or make
economically undesirable its continued qualification, as a real estate
investment trust.
(ak) Neither the Company nor any Subsidiary is an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
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(al) The Shares have been approved for listing on the NYSE,
subject to official notice of issuance.
(am) The Company and its Subsidiaries maintain a system of
internal accounting controls which the Company believes is sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are recorded
as necessary to permit the preparation of financial statements in conformity
with generally accepted accounting principles and to maintain accountability for
assets; (iii) access to financial assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(an) Neither the Company or any of its Subsidiaries nor, to
the knowledge of the Company, any employee or agent of the Company or any
Subsidiary, has made any payment of funds of the Company or any Subsidiary or
received or retained any funds in violation of any law, rule or regulation or of
a character required to be disclosed in the Prospectus.
(ao) The Company has not distributed and, prior to the later
to occur of (i) the Closing Date or (ii) completion of the distribution of the
Shares, will not distribute any offering material in connection with the
offering and sale of the Shares other than the Registration Statement, the
Prospectus or other materials, if any, permitted by the Act.
3. PURCHASE, SALE AND DELIVERY OF FIRM SHARES. On the basis of the
representations, warranties and agreements contained herein, but subject to the
terms and conditions set forth herein, the Company agrees to issue and sell the
Shares, severally and not jointly, to the several Underwriters, and each of the
Underwriters, severally and not jointly, agrees to purchase from the Company,
the number of Shares set forth opposite that Underwriter's name in SCHEDULE A
hereto, at a purchase price of $23.0375 per share (the "Purchase Price").
The Shares to be purchased by the Underwriters will be
delivered by the Company to the office of EVEREN Securities, Inc. at 00 Xxxx
Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, or at such other place as agreed to by
the Underwriters and the Company, in accordance with the terms of this
Underwriting Agreement and against payment of the Purchase Price therefor by
wire transfer of same day funds payable to the order of the Company in the
amount of $2,879,687.50 at the bank account designated in writing by the Company
at least one business day prior to the Closing Date, at 10:00 a.m., New York
time, on September 23, 1998 (or if the NYSE or American Stock Exchange or
commercial banks in the City of New York are not open on such day, the next day
on which such exchanges and banks are open), or at such other time not later
than eight full business days thereafter as the Underwriters and the Company
mutually agree, such time being herein referred to as the "Closing Date." If
requested by the Underwriters, the Shares will be prepared in definitive form
and in such authorized denominations and registered in such names as the
Underwriters may request upon at least two business days' prior notice to the
Company and will be made available for checking and packaging at the office of
EVEREN Securities, Inc. at least one business day prior to the Closing Date.
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4. COVENANTS. The Company covenants and agrees with the Underwriters
that:
(a) The Company will cause the Prospectus Supplement to be
filed as required by Section 2(a) hereof (but only if the Underwriters or their
counsel have not reasonably objected thereto by notice to the Company after
having been furnished a copy a reasonable time prior to filing) and will notify
the Underwriters promptly of such filing. During the period in which a
prospectus relating to the Shares is required to be delivered under the Act or
such date which is 90 days after the Closing Date, whichever is later, the
Company will notify the Underwriters promptly of the time when any subsequent
amendment to the Registration Statement has become effective or any subsequent
supplement to the Prospectus has been filed, or of any request by the Commission
for any amendment or supplement to the Registration Statement or Prospectus or
for additional information; the Company will prepare and file with the
Commission, promptly upon the Underwriters' request, any amendments or
supplements to the Registration Statement or Prospectus that, in the
Underwriters' opinion, may be necessary or advisable in connection with the
Underwriters' distribution of the Shares; and the Company will file no amendment
or supplement to the Registration Statement or Prospectus (other than any
prospectus supplement relating to the offering of other securities registered
under the Registration Statement or any document required to be filed under the
Exchange Act that upon filing is deemed to be incorporated by reference therein)
to which the Underwriters or their counsel shall reasonably object by notice to
the Company after having been furnished a copy a reasonable time prior to the
filing.
(b) The Company will advise the Underwriters, promptly after
it shall receive notice or obtain knowledge thereof, of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement, of the suspension of the qualification or registration of the Shares
for offering or sale in any jurisdiction, or of the initiation or threatening of
any proceeding for any such purpose; and it will promptly use its best efforts
to prevent the issuance of any stop order or to obtain its withdrawal if such a
stop order should be issued.
(c) The Company will comply with all requirements imposed upon
it by the Act, the 1933 Act Rules and Regulations, the Exchange Act and the
Exchange Act Rules and Regulations as from time to time in force, so far as
necessary to permit the continuance of sales of, or dealings in, the Shares as
contemplated by the provisions hereof and the Prospectus. If during such period
where a prospectus relating to the Shares is required to be delivered under the
Act or such date which is 90 days after the Closing Date, whichever is later,
any event occurs as a result of which, in the opinion of Underwriters' counsel,
the Registration Statement contains an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or the Prospectus as then amended or
supplemented contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if during such
period it is necessary to amend or supplement the Registration Statement or
Prospectus to comply with the Act, the Company will promptly notify the
Underwriters and will amend or supplement the Registration Statement or
Prospectus (at the expense of the Company) so as to correct such statement or
omission or effect such compliance.
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(d) The Company will furnish to the Underwriters copies of the
Registration Statement, the Prospectus (including all documents incorporated by
reference therein), each preliminary prospectus and all amendments and
supplements to the Registration Statement and Prospectus that are filed with the
Commission during the period in which a prospectus relating to the Shares is
required to be delivered under the Act or such date which is 90 days after the
Closing Date, whichever is later (including all documents filed with the
Commission during such period that are deemed to be incorporated by reference
therein), in each case as soon as available and in such quantities as the
Underwriters may from time to time reasonably request.
(e) During the period of five years commencing on the date
upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the
Act, the Company will furnish the Underwriters with copies of filings of the
Company under the Act and Exchange Act and with all other financial statements
and periodic and special reports it distributes generally to the holders of any
class of its capital stock.
(f) The Company will make generally available to its
stockholders as soon as practicable, and in the manner contemplated by Rule 158
of the 1933 Act Rules and Regulations but in any event not later than 15 months
after the end of the Company's current fiscal quarter, an earning statement
(which need not be audited) covering a 12-month period beginning after the date
upon which the Prospectus Supplement is filed pursuant to Rule 424(b) under the
Act that shall satisfy the provisions of Section 11(a) of the Act and Rule 158
of the 1933 Act Rules and Regulations and will advise the Underwriters in
writing when such statement has been made available.
(g) Whether or not the transactions contemplated by this
Underwriting Agreement are consummated or this Underwriting Agreement is
terminated, the Company will pay, or reimburse if paid by the Underwriters, all
costs and expenses incident to the performance of the obligations of the Company
under this Underwriting Agreement, including but not limited to costs and
expenses of or relating to (i) the preparation, printing and filing of the
Registration Statement and exhibits thereto, each preliminary prospectus, the
Prospectus and any amendment or supplement to the Registration Statement or the
Prospectus, (ii) the preparation and delivery of certificates representing the
Shares, (iii) the word processing, printing and reproduction of this
Underwriting Agreement, (iv) the costs incurred by the Company in furnishing
(including costs of shipping, mailing and courier) such copies of the
Registration Statement, the Prospectus and any preliminary prospectus, and all
amendments and supplements thereto, as may be requested for use in connection
with the offering and sale of the Shares by the Underwriters or by dealers to
whom Shares may be sold, (v) the listing of the Shares on the NYSE, (vi) the
registration or qualification of the Shares for offer and sale under the
securities or blue sky laws of such jurisdictions designated by the Underwriters
or the notification with respect thereto required by any such jurisdiction,
including the fees, disbursements and other charges of Underwriters' counsel in
connection therewith, and the preparation and printing of blue sky memoranda,
(vii) counsel to the Company, (viii) the transfer agent for the Shares and (ix)
the accountants of the Company.
(h) If this Underwriting Agreement shall be terminated
pursuant to Section 8 hereof or if for any reason the Company shall be unable to
perform its obligations hereunder, the Company will reimburse the Underwriters
for all out-of-pocket expenses (including the fees,
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disbursements and other charges of Underwriters' counsel) reasonably incurred by
the Underwriters in connection herewith.
(i) The Company will not at any time, directly or indirectly,
take any action designed to, or which might reasonably be expected to, cause or
result in, or which has constituted or which might reasonably be expected to
constitute, the stabilization of the price of its capital stock to facilitate
the sale or resale of any of the Shares.
(j) The Company will apply the net proceeds from the sale of
the Shares as set forth under the caption "Use of Proceeds" in the Prospectus
Supplement.
(k) The Company will use its best efforts to continue to meet
the requirements to qualify as a "real estate investment trust" under the Code.
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The Underwriters'
obligation to purchase and pay for the Shares as provided herein shall be
subject to the accuracy, as of the date hereof and the Closing Date (as if made
at the Closing Date), of the representations and warranties of the Company
herein, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) The Registration Statement shall have been declared
effective under the Act; the Prospectus shall have been filed as required by
Section 2(a) hereof; and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that purpose
shall have been instituted or, to the Underwriters' knowledge or the knowledge
of the Company, threatened by the Commission, nor has any state securities
authority suspended the qualification or registration of the Shares for offering
or sale in any jurisdiction and any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to the satisfaction of the Underwriters
and Underwriters' counsel.
(b) The Underwriters shall not have advised the Company that
the Registration Statement or any amendment thereto contains an untrue statement
of fact that in the opinion of the Underwriters or Underwriters' counsel is
material or omits to state a fact that in the opinion of the Underwriters or
Underwriters' counsel is material, and is required to be stated therein or is
necessary to make the statements therein not misleading, or that the Prospectus,
or any amendment or supplement thereto, contains an untrue statement of fact
that in the opinion of the Underwriters or Underwriters' counsel is material or
omits to state a fact that in the opinion of the Underwriters or Underwriters'
counsel is material and is necessary, in the light of the circumstances under
which they were made, to make the statements therein not misleading.
(c) Except as contemplated in the Prospectus Supplement,
subsequent to the respective dates as of which information is included or
incorporated by reference in the Registration Statement and the Prospectus,
there shall not have been any change, on a consolidated basis, in the equity
capitalization, short-term debt or long-term debt of the Company, or any adverse
change, or any development involving a prospective adverse change, in the
condition (financial or other),
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business, prospects, net worth or results of operations of the Company or its
Subsidiaries or any adverse change in the rating assigned to any securities of
the Company, that, in the Underwriters' judgment, makes it impractical or
inadvisable to offer or deliver the Shares on the terms and in the manner
contemplated in the Prospectus.
(d) Xxxxxxxx Xxxxxxxx & Xxxxxx P.C., counsel for the Company,
shall have furnished to the Underwriters its written opinion, as counsel to the
Company, addressed to the Underwriters and dated such Closing Date, in form and
substance satisfactory to the Underwriters, to the effect that:
(i) Each of the Company, the Operating Partnership
and USRP Managing has been duly incorporated or formed, as the
case may be, and is validly existing as a corporation, general
or limited partnership, or other legal entity, as the case may
be, in good standing under the laws of its jurisdiction of
incorporation or formation, as the case may be, and has full
power (corporate or other) and authority to own or hold its
properties and to conduct the business in which it is engaged,
and is duly qualified or registered to do business in each
jurisdiction listed on a schedule attached to such counsel's
opinion. All of the issued and outstanding capital stock or
ownership interests of each of the Operating Partnership and
USRP Managing have been duly authorized and are validly
issued, fully paid and nonassessable and, except for the 8%
limited partner interest in the Operating Partnership owned by
QSV and the .02% limited partnership interests in the
Operating Partnership which are owned by certain Sellers of
properties to the Operating Partnership, are wholly-owned by
the Company, directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity;
(ii) The Company has authorized, issued and
outstanding capital stock as set forth under the caption
"Capitalization" in the Prospectus; all of the issued and
outstanding shares of capital stock of the Company have been
duly and validly authorized and issued; and all of the issued
and outstanding shares of capital stock of the Company are
fully paid and nonassessable and none of them was issued in
violation of any preemptive or other similar right. The Shares
have been duly authorized by the Company for issuance and sale
and when issued and sold pursuant to this Underwriting
Agreement will be duly and validly issued, fully paid and
nonassessable and none of them will have been issued in
violation of any preemptive or other similar right. Except as
disclosed in the Registration Statement and the Prospectus,
there is no outstanding option, warrant or other right calling
for the issuance of, and, to the knowledge of such counsel, no
commitment, plan or arrangement to issue, any share of capital
stock of the Company or any security convertible into,
exercisable for, or exchangeable for capital stock of the
Company. To the best of such counsel's knowledge, no holder of
any security of the Company has the right to have any security
owned by such holder included for registration in the
Registration Statement or to demand registration of any
security owned by such holder during the 180 days after the
date of this Underwriting Agreement. The issued and
outstanding capital stock of the Company and the Shares
conform, or will
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conform, in all material respects to the descriptions thereof
contained in the Registration Statement, the Prospectus and
the Articles Supplementary, as the case may be. The form of
certificate used to evidence the Shares is in due and proper
form and complies with all applicable statutory requirements,
with any applicable requirements of the Company's
organizational documents and with the requirements of the
NYSE;
(iii) The Registration Statement has become effective
under the Act, the Prospectus Supplement has been filed as
required by Section 2(a) hereof and, to the best knowledge of
such counsel, after due inquiry, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceeding for that purpose has been instituted or
threatened by the Commission;
(iv) Each part of the Registration Statement, when
such part became effective, and the Prospectus and any
amendment or supplement thereto, on the date of filing thereof
with the Commission and at the Closing Date, complied as to
form in all material respects with the requirements of the Act
and the 1933 Act Rules and Regulations, and such counsel has
no reason to believe that either (i) any part of the
Registration Statement, when such part became effective or was
filed under the Act or Exchange Act, contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading or (ii) the Prospectus and
any amendment or supplement thereto, on the date of filing
thereof with the Commission or at the Closing Date, included
an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; and the documents (excluding any exhibits thereto)
incorporated by reference in the Registration Statement or
Prospectus or any amendment or supplement thereto, when they
became effective under the Act or were filed with the
Commission under the Act or Exchange Act, as the case may be,
complied as to form in all material respects with the
requirements of the Act, the Exchange Act, the 1933 Act Rules
and Regulations or the Exchange Act Rules and Regulations, as
applicable; it being understood that such counsel need express
no opinion as to the financial statements or other financial
data included in any of the documents mentioned in this
clause;
(v) The descriptions in the Registration Statement
and Prospectus of statutes, legal and governmental
proceedings, contracts and other documents are accurate and
fairly present the information required to be shown; and such
counsel does not know of any statutes or legal or governmental
proceedings required to be described in the Prospectus that
are not described as required, or of any contracts or
documents of a character required to be described in the
Registration Statement or Prospectus (or required to be filed
under the Exchange Act if upon such filing they would be
incorporated by reference therein) or to be filed as exhibits
to the Registration Statement that are not described and filed
as required;
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(vi) This Underwriting Agreement has been duly
authorized, executed and delivered by the Company and
constitutes the legal, valid and binding obligations of the
Company and assuming the laws of the State of New York are the
same as the laws of the State of Texas, enforceable against it
in accordance with its terms, except as the enforceability
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general
equitable principles and except to the extent that the
indemnification provisions set forth herein may be limited by
federal or state securities laws or the public policy
underlying such laws; the execution, delivery and performance
of this Underwriting Agreement and the consummation of the
transactions contemplated herein, including the issuance of
the Shares, will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under,
(a) any statute, indenture, mortgage, deed of trust, voting
trust agreement, loan agreement, bond, debenture, note
agreement or evidence of indebtedness, lease, contract or
other agreement or instrument known to such counsel to which
the Company or its Subsidiaries are a party or by which they
are bound or to which any of the property or other assets of
the Company or its Subsidiaries is subject, (b) the articles
of incorporation, charter, by-laws, certificate of general or
limited partnership, partnership agreement, or other
organizational document of the Company or any of its
Subsidiaries, as applicable, or (c) any order, rule or
regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or its
Subsidiaries or any of their properties or other assets; and
no consent, approval, authorization, notice to, order of, or
filing with, any court or governmental agency or body is
required for the consummation of the transactions contemplated
by this Underwriting Agreement in connection with the issuance
or sale of the Shares by the Company, except such as have been
obtained under the Act or from the NYSE;
(vii) The Company is organized and operated in
conformity with the requirements for qualification as a "real
estate investment trust" under the Code. The Company's method
of operation permits it to meet and to continue to meet the
requirements for taxation as a "real estate investment trust"
under the Code. The federal income tax treatment described in
the Prospectus under the caption "Federal Income Tax
Considerations" is accurate;
(viii) To the best of such counsel's knowledge,
neither the Company nor any of its Subsidiaries is in
violation of any term or provision of their respective
articles of incorporation, charter, by-laws, certificate of
general or limited partnership, partnership agreement or other
organizational document, as applicable, or in violation of or
default under any indenture, mortgage, deed of trust, voting
trust agreement, loan agreement, bond, debenture, note
agreement or evidence of indebtedness, lease, contract,
permit, judgment, decree, order, statute, rule or regulation;
(ix) To the best of such counsel's knowledge, there
is no litigation or governmental or other proceeding or
investigation, before any court or before or by
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any public body or board pending or threatened against, or
involving the assets, properties or businesses of, the Company
or any of its Subsidiaries, involving the Company's or any of
its Subsidiaries' officers or directors or to which any of the
Company's or any of its Subsidiaries' properties or other
assets are subject which would have a material adverse effect
upon the assets or properties, business, results of
operations, prospects or condition (financial or otherwise) of
the Company and its Subsidiaries taken as a whole;
(x) Neither the Company nor any of its Subsidiaries
is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended;
(xi) U.S. Restaurant Properties, Inc. has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Maryland and is in
good standing with the State Department of Assessments and
Taxation of Maryland, and has full corporate power and
authority to own or hold its properties and to conduct its
business as described in the Registration Statement and
Prospectus, and to enter into and perform its obligations
under this Underwriting Agreement;
(xii) All of the issued and outstanding shares of
capital stock of U.S. Restaurant Properties, Inc. have been
duly and validly authorized and issued; and all of the issued
and outstanding shares of capital stock of U.S. Restaurant
Properties, Inc. are fully paid and nonassessable and none of
them was issued in violation of any preemptive or other
similar right under the charter of U.S. Restaurant Properties,
Inc. or Maryland law. The Shares have been duly authorized by
U.S. Restaurant Properties, Inc. for issuance and sale and
when issued and sold pursuant to this Underwriting Agreement
will be duly and validly issued, fully paid and nonassessable
and none of them will have been issued in violation of any
preemptive or other similar right under the charter of U.S.
Restaurant Properties, Inc. or Maryland law. The issued and
outstanding capital stock of U.S. Restaurant Properties, Inc.
and the Shares conform, or will conform, in all material
respects to the descriptions thereof contained in the
Registration Statement and the Prospectus. The form of
certificate used to evidence the Shares is in due and proper
form and complies with all applicable statutory requirements
under Maryland law and with any applicable requirements of the
charter and by-laws of U.S. Restaurant Properties, Inc.;
(xiii) The execution, delivery and performance of
this Underwriting Agreement and the consummation of the
transactions contemplated herein, including the issuance of
the Shares, will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under,
(a) any statute under Maryland law to which U.S. Restaurant
Properties, Inc. is bound or to which any of the property or
other assets of U.S. Restaurant Properties, Inc. is subject,
(b) the charter or by-laws of U.S. Restaurant Properties, Inc.
or (c) except as may be required under the blue sky laws of
the State of Maryland, any order, rule or regulation known to
such
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counsel of any court or governmental agency or body of the
State of Maryland that has jurisdiction over U.S. Restaurant
Properties, Inc. or any of its properties or other assets; and
except such as may be required under the blue sky laws of the
State of Maryland, no consent, approval, authorization, notice
to, order of, or filing with, any court or governmental agency
or body of the State of Maryland is required to be obtained by
U.S. Restaurant Properties, Inc. for the consummation of the
transactions contemplated by this Underwriting Agreement in
connection with the issuance or sale of the Shares by U.S.
Restaurant Properties, Inc.; and
(xiv) To such counsel's knowledge, there is no
litigation or governmental or other proceeding or
investigation, before any court or before or by any public
body or board pending or threatened against, or involving the
assets, properties or businesses of, U.S. Restaurant
Properties, Inc. or any of its Subsidiaries, involving U.S.
Restaurant Properties, Inc.'s or any of its Subsidiaries'
officers or directors or to which any of U.S. Restaurant
Properties, Inc.'s or any of its Subsidiaries' properties or
other assets are subject which would have a material adverse
effect upon the assets or properties, business, results of
operations, prospects or condition (financial or otherwise) of
U.S. Restaurant Properties, Inc. and its Subsidiaries taken as
a whole.
(e) Middleberg, Xxxxxx & Gianna, counsel for the Company,
shall have furnished to the Underwriters its written opinion, as counsel to the
Company, addressed to the Underwriters and dated such Closing Date, in form and
substance satisfactory to the Underwriters, to the effect that:
(i) Each of the Company's Subsidiaries (other than
the Operating Partnership and USRP Managing) has been duly
incorporated or formed, as the case may be, and is validly
existing as a corporation, general or limited partnership, or
other legal entity, as the case may be, in good standing under
the laws of its jurisdiction of incorporation or formation, as
the case may be, and has full power (corporate or other) and
authority to own or hold its properties and to conduct the
business in which it is engaged, and is duly qualified or
registered to do business in each jurisdiction in which it
owns or leases real property or in which the conduct of its
business requires such qualification or registration, except
where the failure to be so qualified or registered,
considering all such cases in the aggregate, does not involve
a material risk to the business, properties, financial
position or results of operations of the Company and its
Subsidiaries taken as a whole. All of the issued and
outstanding capital stock or ownership interests of each
Subsidiary (other than the Operating Partnership and USRP
Managing) have been duly authorized and are validly issued,
fully paid and nonassessable and are wholly-owned by the
Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; and
(ii) To the best of such counsel's knowledge, no
holder of any security of the Company has the right to have
any security owned by such holder included for registration in
the Registration Statement or to demand registration of any
security
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owned by such holder during the 180 days after the date of
this Underwriting Agreement.
(f) The Underwriters shall have received from O'Melveny &
Xxxxx LLP, counsel to the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the validity of the Shares, the Registration
Statement, the Prospectus and other related matters as the Underwriters
reasonably may request, and such counsel shall have received such papers and
information as they request to enable them to pass upon such matters.
(g) At the time of execution of this Underwriting Agreement
and at the Closing Date, the Underwriters shall have received a letter, dated
the date of delivery thereof, from Deloitte & Touche LLP, the independent public
accountants of the Company, in the form previously agreed to by the
Underwriters.
(h) The Underwriters shall have received from the Company a
certificate, signed by the President or the Chairman of the Board and by the
principal financial or accounting officer of the Company, dated the Closing
Date, to the effect that, to the best of their knowledge based upon reasonable
investigation:
(i) The representations and warranties of the Company
in this Underwriting Agreement are true and correct, as if
made at and as of the Closing Date, and the Company has
complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) No stop order suspending the effectiveness of
the Registration Statement has been issued, and no proceeding
for that purpose has been instituted or is threatened by the
Commission nor has any state securities authority suspended
the qualification or registration of the Shares for offering
or sale in any jurisdiction;
(iii) Since the effective date of the Registration
Statement, there has occurred no event required to be set
forth in an amendment or supplement to the Registration
Statement or Prospectus that has not been so set forth, and
there has been no document required to be filed under the
Exchange Act and the Exchange Act Rules and Regulations of the
Commission thereunder that upon such filing would be deemed to
be incorporated by reference in the Prospectus that has not
been so filed;
(iv) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, (a) there has not been, and no development has
occurred which could reasonably be expected to result in, a
material adverse change in the general affairs, business,
business prospects, properties, management, condition
(financial or otherwise) or results of operations of the
Company and its Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
in each case other than as set forth in
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or contemplated by the Registration Statement and the
Prospectus and (b) neither the Company nor any of its
Subsidiaries has sustained any material loss or interference
with its business or properties from fire, explosion, flood or
other casualty, whether or not covered by insurance, or from
any labor dispute or any court or legislative or other
governmental action, order or decree, which is not set forth
in the Registration Statement and the Prospectus; and
(v) such other matters as the Underwriters or
Underwriters' counsel may reasonably request.
(i) On or prior to the Closing Date, the Underwriters shall
have received the executed agreements referred to in Section 4(k).
(j) On the Closing Date, the Shares shall have been duly
authorized for listing by the NYSE, subject to official notice of issuance.
(k) All such opinions, certificates, letters and other
documents will be in compliance with the provisions hereof only if they are
satisfactory in form and substance to the Underwriters or Underwriters' counsel.
The Company will furnish the Underwriters with such conformed copies of such
opinions, certificates, letters and other documents as the Underwriters shall
reasonably request and the Company shall furnish to the Underwriters such
further certificates and documents as the Underwriters shall have reasonably
requested.
(l) Subsequent to the execution and delivery of this
Underwriting Agreement (i) no downgrading or adverse change shall have occurred
in the rating accorded any security of the Company by any "nationally recognized
statistical rating organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the 1933 Act Rules and Regulations and (ii) no
such organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any security of
the Company, that, in either event, makes it impractical or inadvisable, in the
Underwriters' judgment, to offer or deliver the Shares on the terms and in the
manner contemplated by the Prospectus.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold the Underwriters
harmless, their directors, officers, employees and agents and each person, if
any, who controls them within the meaning of Section 15 of the Act or Section 20
of the Exchange Act from and against any and all losses, claims, liabilities,
expenses and damages (including, but not limited to, any and all investigative,
legal and other expenses reasonably incurred in connection with, and any and all
amounts paid in settlement of, any action, suit or proceeding between any of the
indemnified parties and any indemnifying parties or between any indemnified
party and any third party, or otherwise, or any claim asserted), as and when
incurred to which the Underwriters, or any such person, may become subject under
the Act, the Exchange Act or other federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, liabilities,
expenses or damages arise out of or are based on (i) any untrue statement or
alleged untrue statement of a material fact
21
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contained in any preliminary prospectus, the Registration Statement or the
Prospectus or any amendment or supplement to the Registration Statement or the
Prospectus or in any documents filed under the Exchange Act and deemed to be
incorporated by reference into the Prospectus, or in any application or other
document executed by or on behalf of the Company or based on written information
furnished by or on behalf of the Company filed in any jurisdiction in order to
qualify the Shares under the securities or blue sky laws thereof or filed with
the Commission, (ii) the omission or alleged omission to state in such document
a material fact required to be stated in it or necessary to make the statements
in it, in the light of the circumstances under which they were made, not
misleading or (iii) any act or failure to act or any alleged act or failure to
act by the Underwriters in connection with, or relating in any manner to, the
Shares or the offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, damage, liability or action arising out of or
based upon matters covered by clause (i) or (ii) above (provided that the
Company shall not be liable under this clause (iii) to the extent it is finally
judicially determined by a court of competent jurisdiction that such loss,
claim, damage, liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by the Underwriters through
their gross negligence or willful misconduct); provided that the Company will
not be liable to the extent that such loss, claim, liability, expense or damage
arises from the sale of the Shares in the public offering to any person and is
based on an untrue statement or omission or alleged untrue statement or omission
made in reliance on and in conformity with information relating to the
Underwriters furnished in writing to the Company by the Underwriters expressly
for inclusion in the Registration Statement or the Prospectus. The Underwriters
confirm to the Company and the Company acknowledges that only the following
information appearing in the Prospectus with respect to the public offering of
the Shares has been furnished to the Company by the Underwriters for use in the
Prospectus: (i) the names of the Underwriters contained on the cover page and
back cover page of the Prospectus Supplement; (ii) the stabilization legend on
the inside front cover page of the Prospectus Supplement; and (iii) the
information in the second, seventh and eighth paragraphs under the caption
"Underwriting" in the Prospectus Supplement. This indemnity agreement will be in
addition to any liability that the Company might otherwise have.
(b) The Underwriters will indemnify and hold harmless the
Company, each person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, each director of the
Company and each officer of the Company who signs the Registration Statement to
the same extent as the foregoing indemnity from the Company to the Underwriters,
but only insofar as losses, claims, liabilities, expenses or damages arise out
of or are based on any untrue statement or omission or alleged untrue statement
or omission made in reliance on and in conformity with information relating to
the Underwriters furnished in writing to the Company by the Underwriters
expressly for use in the Registration Statement or the Prospectus. This
indemnity will be in addition to any liability that the Underwriters might
otherwise have; provided, however, that in no case shall the Underwriters be
liable or responsible for any amount in excess of the underwriting discounts and
commissions received by the Underwriters.
(c) Any party that proposes to assert the right to be
indemnified under this Section 6 will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim is to
be made against an indemnifying party or parties under this Section 6, notify
each such indemnifying party of the commencement of such action, enclosing a
copy of all papers
22
23
served, but the omission so to notify such indemnifying party will not relieve
it from any liability that it may have to any indemnified party under the
foregoing provisions of this Section 6 unless, and only to the extent that, such
omission results in the forfeiture of substantive rights or defenses by the
indemnifying party. If any such action is brought against any indemnified party
and it notifies the indemnifying party of its commencement, the indemnifying
party will be entitled to participate in and, to the extent that it elects by
delivering written notice to the indemnified party promptly after receiving
notice of the commencement of the action from the indemnified party, jointly
with any other indemnifying party similarly notified, to assume the defense of
the action, with counsel reasonably satisfactory to the indemnified party, and
after notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below and
except for the reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. The indemnified party will
have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel will be at the expense of such
indemnified party unless (i) the employment of counsel by the indemnified party
has been authorized in writing by the indemnifying party, (ii) the indemnified
party has reasonably concluded (based on advice of counsel) that there may be
legal defenses available to it or other indemnified parties that are different
from or in addition to those available to the indemnifying party, (iii) a
conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (iv) the indemnifying
party has not in fact employed counsel to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or parties.
It is understood that the indemnifying party or parties shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees, disbursements and other charges of more than one
additional firm admitted to practice in such jurisdiction at any one time for
all such indemnified party or parties. All such fees, disbursements and other
charges will be reimbursed by the indemnifying party promptly as they are
incurred. An indemnifying party will not be liable for any settlement of any
action or claim effected without its written consent (which consent will not be
unreasonably withheld); provided, however, no indemnifying party shall, without
the prior written consent of each indemnified party, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim, action
or proceeding relating to the matters contemplated by this Section 6 (whether or
not any indemnified party is a party thereto), unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising or that may arise out of such claim, action or
proceeding. Notwithstanding any other provision of this Section 6(c), if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement effected
without its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement.
23
24
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 6 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Company or the Underwriters, the
Company and the Underwriters will contribute to the total losses, claims,
liabilities, expenses and damages (including any investigative, legal and other
expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted, but after
deducting any contribution received by the Company from persons other than the
Underwriters, such as persons who control the Company within the meaning of the
Act, officers of the Company who signed the Registration Statement and directors
of the Company, who also may be liable for contribution) to which the Company
and the Underwriters may be subject in such proportion as shall be appropriate
to reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus Supplement. If, but only if, the allocation
provided by the foregoing sentence is not permitted by applicable law, the
allocation of contribution shall be made in such proportion as is appropriate to
reflect not only the relative benefits referred to in the foregoing sentence but
also the relative fault of the Company on the one hand, and the Underwriters, on
the other, with respect to the statements or omissions which resulted in such
loss, claim, liability, expense or damage, or action in respect thereof, as well
as any other relevant equitable considerations with respect to such offering.
Such relative fault shall be determined by reference to whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or the
Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this Section 6(d) were to be determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, liability, expense or
damage, or action in respect thereof, referred to above in this Section 6(d)
shall be deemed to include, for purpose of this Section 6(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), the Underwriters shall not be required to
contribute any amount in excess of the underwriting discounts and commissions
received by the Underwriters and no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) will be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 6(d), any person who controls a
party to this Underwriting Agreement within the meaning of the Act will have the
same rights to contribution as that party, and each officer of the Company who
signed the Registration Statement will have the same rights to contribution as
the Company, subject in each case to the provisions hereof. Any party entitled
to contribution, promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for contribution may be made
under this Section 6(d), will notify any such party or parties from whom
contribution may be sought, but the omission so to notify will not relieve the
party or parties from whom contribution may be sought from any other obligation
it or they may have under this Section 6(d). Except for a
24
25
settlement entered into pursuant to the last sentence of Section 6(c) hereof, no
party will be liable for contribution with respect to any action or claim
settled without its written consent (which consent will not be unreasonably
withheld).
(e) The indemnity and contribution agreements contained in
this Section 6 and the representations and warranties of the Company contained
in this Underwriting Agreement shall remain operative and in full force and
effect regardless of (i) any investigation made by or on behalf of the
Underwriters, (ii) acceptance of the Shares and payment therefor or (iii) any
termination of this Underwriting Agreement.
7. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements of the Company contained herein or in
certificates delivered pursuant hereto, and the Underwriters' agreements
contained in Section 6 hereof, shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of the Underwriters
or any controlling persons, or the Company or any of its officers, directors or
any controlling persons, and shall survive delivery of and payment for the
Shares hereunder.
8. TERMINATION. The Underwriters shall have the right by giving notice
as hereinafter specified at any time at or prior to the Closing Date, to
terminate this Underwriting Agreement if (i) the Company shall have failed,
refused or been unable, at or prior to the Closing Date, to perform any
agreement on its part to be performed hereunder, (ii) any condition of the
Underwriters' obligations specified in Section 5 hereof is not fulfilled when
due, (iii) trading on the NYSE shall have been wholly suspended, (iv) minimum or
maximum prices for trading shall have been fixed, or maximum ranges for prices
for the Common Stock shall have been required, on the NYSE by the NYSE or by
order of the Commission or any other governmental authority having jurisdiction,
(v) a banking moratorium shall have been declared by federal or New York
authorities, or (vi) an outbreak of major hostilities in which the United States
is involved, a declaration of war by Congress, any other substantial national or
international calamity or any other event or occurrence of a similar character
shall have occurred since the execution of this Underwriting Agreement that, in
the Underwriters' judgment, makes it impractical or inadvisable to proceed with
the completion of the sale of and payment for the Shares. Any such termination
shall be without liability of any party to any other party with respect to
Shares not purchased by reason of such termination except that the provisions of
Section 4(g), Section 4(h) and Section 6 hereof shall at all times be effective.
If the Underwriters elect to terminate this Underwriting Agreement as provided
in this Section, the Company shall be notified promptly by the Underwriters by
telephone, telex or telecopy, confirmed by letter.
9. NOTICES. All notices or communications hereunder shall be in writing
and if sent to the Underwriters shall be mailed, delivered, telexed or
telecopied and confirmed to the Underwriters in care of EVEREN Securities, Inc.
at 00 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xx. Xxx X. Xxxxx
(with copy, which shall not constitute notice, to Xxxxx X. Xxxxx, Esq., c/o
O'Melveny & Xxxxx LLP, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx
94111), or if sent to the Company, shall be mailed, delivered, telexed or
telecopied and confirmed to Xxxxxx X. Xxxxxxx c/o the Company at 0000 Xxxxxxx
Xxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 (with copy, which shall not constitute
notice, to Xxxxxxx X. Xxxxx, Esq., c/x Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.,
25
26
5400 Renaissance Tower, 0000 Xxx Xxxxxx, Xxxxxx, Xxxxx 75270). Any party to this
Underwriting Agreement may change such address for notices by sending to the
other party to this Underwriting Agreement written notice of a new address for
such purpose.
10. PARTIES. This Underwriting Agreement shall inure to the benefit of,
and be binding upon, the Company and the Underwriters and their respective
successors and the controlling persons, officers, directors, employees and
representatives referred to in Section 6 hereof, and no other person will have
any right or obligation hereunder.
11. APPLICABLE LAW. This Underwriting Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York.
12. OVER-ALLOTMENT OPTION.
(a) Upon written notice from the Underwriters given to the
Company not more than 30 days subsequent to the date of the public offering of
the Shares, the Underwriters may purchase all or less than all of the Option
Shares at the Purchase Price per share to be paid for the Firm Shares. Such
Option Shares may be purchased by the Underwriters only for the purpose of
covering over-allotments made in connection with the sale of the Firm Shares. No
Option Shares shall be sold or delivered unless the Firm Shares previously have
been, or simultaneously are, sold and delivered. The right to purchase the
Option Shares or any portion thereof may be surrendered and terminated at any
time upon notice by the Underwriters to the Company. The "Closing Date" as
defined in Section 3 hereof shall be deemed to be the "Closing Date," and the
time for the delivery of, and payment for, the Option Shares is herein referred
to as the "Option Closing Date" (which may be the Closing Date). The Option
Closing Date shall be determined by the Underwriters but shall be not later than
10 days after the Underwriters give to the Company written notice of election to
purchase Option Shares. The preparation, registration, checking and delivery of,
and payment for, the Option Shares shall occur or be made in the same manner as
provided in Section 3 hereof for the Firm Shares, except as the Underwriters and
the Company may otherwise agree.
(b) The conditions to the Underwriters' obligations set forth
in Section 5 shall be deemed to be conditions to the Underwriters' obligation to
purchase and pay for the Shares to be purchased on each of the Closing Date and
the Option Closing Date, as the case may be; references in that Section and in
Sections 2, 8 and 13 hereof to the "Closing Date" shall be deemed to be
references to the Closing Date or the Option Closing Date, as the case may be,
and references to the "Shares" in Section 5 hereof shall be deemed to be
references to the Shares to be purchased at such Closing Date. A termination of
this Underwriting Agreement as to the Option Shares after the Closing Date will
not terminate this Underwriting Agreement as to the Firm Shares.
13. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If, on either the
Closing Date or the Option Closing Date, any Underwriter defaults in the
performance of its obligations under this Underwriting Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Shares which the
defaulting Underwriter agreed but failed to purchase on such Closing Date in the
respective proportions which the number of Firm Shares set forth opposite the
name of each remaining non-defaulting Underwriter in SCHEDULE A hereto bears to
the total
26
27
number of Firm Shares set forth opposite the names of all the remaining
non-defaulting Underwriters in SCHEDULE A hereto; provided, however, that the
remaining non-defaulting Underwriters shall not be obligated to purchase any of
the Shares on such Closing Date if the total number of Shares which the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
date exceeds 9.09% of the total number of Shares to be purchased on such Closing
Date, and any remaining non-defaulting Underwriter shall not be obligated to
purchase more than 110% of the number of Shares which it agreed to purchase on
such Closing Date. If the foregoing maximums are exceeded, the remaining
non-defaulting Underwriters, or those other underwriters satisfactory to the
Underwriters who so agree, shall have the right, but shall not be obligated, to
purchase, in such proportion as may be agreed upon among them, all the Shares to
be purchased on such Closing Date. If the remaining non-defaulting Underwriters
or other underwriters satisfactory to the Underwriters do not elect to purchase
the Shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase on such Closing Date, this Underwriting Agreement (or, with respect to
the Option Closing Date, the obligation of the Underwriters to purchase, and of
the Company to sell, the Option Securities) shall terminate without liability on
the part of any non-defaulting Underwriter or the Company, except that the
Company will continue to be liable for the payment of expenses to the extent set
forth in Sections 4(g) and 4(h). As used in this Underwriting Agreement, the
term "Underwriter" includes, for all purposes of this Underwriting Agreement
unless the context requires otherwise, any party not listed in SCHEDULE A hereto
who, pursuant to this Section 13, purchases Firm Shares which a defaulting
Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company for damages caused by its default. If other
underwriters are obligated or agree to purchase the Shares of a defaulting or
withdrawing Underwriter, either the Underwriters or the Company may postpone the
Closing Date for up to seven full business days in order to effect any changes
that in the opinion of counsel for the Company or counsel for the Underwriters
may be necessary in the Registration Statement, the Prospectus or in any other
document or arrangement.
(signature page follows)
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28
If the foregoing correctly sets forth the understanding between the
Company and the Underwriters, please so indicate in the space provided below for
that purpose, whereupon this letter shall constitute a binding agreement between
the Company and the Underwriters.
Very truly yours,
U.S. RESTAURANT PROPERTIES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
U.S. RESTAURANT PROPERTIES
OPERATING L.P.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
USRP Managing, Inc.,
its general partner
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
EVEREN SECURITIES, INC.
By: /s/ Xxxx X. Xxxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
For themselves and as representative of the several Underwriters named in
SCHEDULE A hereto.
S-1
29
SCHEDULE A
UNDERWRITERS
UNDERWRITER NUMBER OF SHARES
----------- ----------------
EVEREN Securities, Inc. ............................. 125,000
-------
Total ...................................... 125,000
=======
Schedule A-1
30
SCHEDULE B
SUBSIDIARIES
1. U.S. Restaurant Properties Operating L.P. (Delaware)
2. U.S. Restaurant Properties Business Trust I (Delaware)
3. U.S. Restaurant Properties Business Trust II (Delaware)
4. USRP (West Virginia) Partners, L.P. (Texas)
5. Restaurant Renovation Partners, L.P.(Texas)
6. USRP (Lincoln), Ltd. (Texas)
7. USRP (Xxxxxx), Ltd. (Texas)
8. USRP (Carolina), Ltd. (Texas)
9. Restaurant Acquisition Corp. (Texas)
10. USRP Renovation Corp. (Texas)
11. Restaurant Contractor Corp. (Texas)
12. USRP (XxxXxx), LLC (Texas)
13. USRP (Sybra), LLC (Texas)
14. USRP (Ribbit), LLC (Texas)
15. USRP (Xxxxx), LLC (Texas)
16. USRP (Central Avenue), LLC (Texas)
17. USRP (Midon), LLC (Texas)
18. USRP Managing, Inc. (Delaware)
Schedule B-1
31
SCHEDULE C
PROPERTIES IN WHICH THE COMPANY HOLDS A LEASEHOLD INTEREST
1. BK 0000 Xxxx Xxxx Xxxx. Xxx Xxxxx, XX
2. BK 00000 X.X. Xxxxxxx X. Xxxxxxxxxx, XX
3. BK 000 Xxxxxxxxxxx Xxxxxx Xxxxxxx, XX
4. Jose's Mexican 000 Xxxxx "X" Xxxxxx Xxx Xxxxxxxxxx, XX
5. BK 0000 X. Xxxxxxx Xxxxx Xxxxxxx, XX
6. BK 0000 X. 00xx Xxxxxx Xxxxxx, XX
7. BK 000 Xxxxx Xxxxx 00 Xxxxxxx, XX
8. BK 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxx, XX
9. BK 000 Xxxx Xxxxxx Xxxxxxxx, XX
10. BK 00000 Xxxxxxx Xxxxxxx Xxxxx Xxxx, XX
11. BK 0000 Xxxx Xxxx Xxxxx, XX
12. BK 000 Xxx Xxxx Xxxxxxx Xxxxx, XX
13. BK 000 Xxxxx Xxxx Xxxxxx Xxxxxx, XX
14. BK 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxxxxx, XX
15. BK 000 X. Xxxxx Xxxxxx (Xxxxxx Xxxx) Xxxxxx, XX
16. BK 000 Xxxxx Xxxxxx Xxxxxxxxxxx, XX
17. BK 0000 Xxxxx Xxx "X" Xxxx Xxxxxx, XX
18. BK 0000 Xxxxxxx Xxxx Xxxxxxx Xxxxxxx Xxxxxxxx, XX
19. BK 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxx, XX
20. BK 0000 Xxxxx Xxxxx Xxxx. Xxxxxxx, XX
21. BK 000 Xxxxxxxxx Xxxx Xxxxxxx, XX
22. BK 0000 Xxxxxxx Xxxxxx Xxxx Xxxxxxx, XX
23. BK Crossroads Shopping Center Westminster, MD
24. BK 0000 Xxxxxxxxx Xxxxxx Xx Xxxxxx, XX
25. BK 0000 Xxxx Xxxxx Xx Xxxxxx Xxxxxxxxx, XX
26. BK 0000 Xxxxxx Xxxx Xxxxx, XX
27. BK 0000 Xxxxxxxx Xxxx Xxxxxxxxxxx, XX
28. BK 000 Xxxx Xxxxxx Xxxxxxxxxx, XX
29. BK 0000 X. Xxxxx Xxxxxx Xxxxxx, XX
30. BK 0000 Xxxxx Xxxxx Xxxxxx Xxxxxx, XX
31. BK 0000 X. Xxxxx Xxxxxx Xxxxxx, XX
32. XX X. 00000 Xxxxxxx Xxxxxx Xxxxxxx, XX
33. BK Xx. 000 & Xx. 0-00 X. Xxxxxxxxxx, XX
00. BK 0000 Xxxxxxxxx-Xxxxxxxxx Xxxx Xxxxxxxxx, XX
35. BK 0 Xxxxxxx Xxxxx Xxxxxxx, XX
36. BK Xx. 0X & X. Xxxxx Xxxxxx Xxxxxxxxx, XX
00. BK 0000 Xxxxx Xxxxxxx Xxxx Xxxxxxx Xxxxx, XX
38. BK 000 X. Xxxxxx Xxxx Xxxx Xxxxxxxxxx, XX
39. BK 000 X. Xxxxxxxx Xxxxxx Xxxxxx Xxxx, XX
40. BK 0000 X. Xxxxxxx & Xxxx Xxxxxxx, XX
41. BK 00 Xxxxx 0xx Xxxxxx Xxxxxxxxxxxx, XX
42. BK 000 X. Xxxxxxx Xxxxxx Xxxxxxxx, XX
43. BK 0000 - 00xx Xxxxxx Xxxxx, XX
44. BK 0000 Xxxx Xxxxxx Xxxxxx XxXxxxxx, XX
Schedule X-0
00
00. BK 0000 Xxxxx Xxxx Xxxxxxx, XX
46. BK 0000 Xxxxx Xxxxxx Xxxxxxx, XX
47. BK 0000 X. Xxxxxxx Xxxxxx Xxxxxxx, XX
48. BK R.D. 0 - Xxxxx 00 Xxxxxxx, XX
49. BK 000 Xxxxxx Xxxxxx Xxxxxxxxxx, XX
50. BK 0000 Xxxxxx Xxxxx Xxxx Xxxxxx Xxxx, XX
51. BK 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxx, XX
52. BK 0000 Xxxxxx Xxxx. X.X., Xxxxxx, XX
53. BK 0000 Xxxxx Xx Xxxxxx Xxxx Xxx Xxxxx, XX
54. BK 000 Xxxx Xx Xxxxx Xxx Xxxxxx, XX
55. BK 00 Xxxxx Xxxxxx Xxxx Xxxxxx, AZ(a)
56. BK 0000 Xx. Xxxxxx Xxxxxx Xxxxxx, XX
57. XX Xxxxxxxxx Xxxx & Xxxxx Xxxx Xxxxx, XX
58. BK Route 00 Xxxxxxx Xxxxxx Xxxxxxxxx, XX
59. BK 000 Xxxx Xxxx Xxxxxxxxxxx, XX
60. BK 0000 Xxxxxxx Xxxxxx Xxxxxxx, XX
61. BK 0000 X. Xxxxx Xxxxxx Xxxxxxx Xxxxx, XX
62. XX XX 000 X. Xxxxxxx Xxxx Xxxxxxxxxx, XX
63. XX XX 0000 Xxxxx Xxxxxx Xxxxxx Xxxx, XX
64. XX XX 0000 Xxxxx Xxxxxxx Xxxxxxxx, XX
65. XX XX 0000 X. Xxxxxx Xxxxxx Xxxxxx, XX
66. XX XX Xxx. 00 & Xxxxxxx Xx. Xxxxxxxxxx, XX
67. XX XX 0000 X. Xxxxxx Xxxx Xxxxx, XX
68. XX XX 000 Xxxxxxxx Xxxxxxxx Xxxxxx, XX
69. XX XX 0000 X. Xxxxxx Xxxx Xxxxxx, XX
70. XX XX 0000 Xxxxxx Xxxxxx Xxxxxxxxxxx, XX
71. XX XX 0000 X. Xxxxxxxxx Xxxx Xxxxxxxx, XX
72. BK 00 X. Xxxxxxxxx Xxxxxxx Xx. Xxxxxxx, XX
73. BK 0000 Xxxxxxx Xxxxxx Xxxxxxxxxxxx, XX
74. BK 0000 Xxxxxxx Xxx Xxxxxxxxxx, XX
75. BK 0000 X. 000xx Xxxxxx Xxxxxxx Xxxxxxx, XX
76. BK 0000 Xxxxxxx Xxxxxx Xxxxxx, XX
77. BK 0000 Xxxxxxx Xxxxxxx Xxx Xxxxxxxx Xxxx, XX
78. BK 0000 Xxxxx Xxxx Xxxxxxxxxxxx, XX
79. BK 000 X. Xxxxxxxx Xxx Xxxxxxxxxx, XX
80. BK 0000-X X. Xxxx Xxxxxx Xxxxxxxx, XX
81. BK 0000 Xxxxx Xxxxxxx 00 Xxxxxx, XX
82. BK 000 Xxxxxx Xxxx Xxxx Xxxxxxxxx, XX
83. BK 000 Xxxx Xxxxxx Xxxxxxxxxxx, XX
84. BK 0000 Xxxxx 00 Xxxx, XX
85. Hardee's 0000 Xxxxxxxx Xx., XX Xxx. 00 Xxxxxxxx, XX
86. Hardee's 0000 Xxxxxx Xxxxxx Xxxxxxxxx, XX
87. Hardee's 000 Xxxxxxx 00 Xxxxxx Xxxx, XX
88. Hardee's X.X. Xxx 0000, Xxx. 000 & 00 Xxxxxxxx Xxxx, XX
89. Hardee's 000 Xxxxxxxx Xxxxx Xxxxxxxx, XX
90. Fazoli's 000 Xxxxxxx Xxxx Xxxxx Xxxxxxxxxxx, XX
91. Memphis Best 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, XX
92. Pizza Hut 0000 Xxxx 00xx Xxxxxx Xxxxxxxxxxx, XX
93. Boston Market 00 Xxxxxxxxxxx Xx Xxxxxxxxxx XX
94. Pizza Hut 0000 Xxxxxxxxx Xxxxxxxx Xxxxxxxxx, XX
Schedule C-2
33
95. Xxxxxx'x Restaruant 0000 X. Xxxxxx Xx Xxxxxxxxxxxx, XX
96. Xxxxxx'x Restaurant 0000 Xxxxx Xxxxxx Xxxx Xxxxxxxxxxxx, XX
97. Xxxxx Oil 0000 Xxxxx Xxxxxx Xxxx Xxxxxxxxxx Xxxx, XX
98. Applebee's 0000 Xxxxxxxxxx Xxx Xxxxx Xxxxx, XX
99. Applebee's 000 Xxxxxxxx Xxxxxx Xxxx, XX
100. Applebee's 0000 00xx Xxxxxx Xxxxxx, XX
101. Applebee's 0000 0xx Xxxxxx X Xxxx Xxxxx, XX
102. Applebee's 000 00xx Xxxxxx Xxxxxxxxxx, XX
Schedule C-3
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SCHEDULE D
TENANT RIGHTS OF FIRST REFUSAL/FIRST OFFER
1. Memphis Best 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, XX
2. Xxxxxx'x Restaurant 0000 Xxxxx Xxxxxx Xxxx Xxxxxxxxxxxx, XX
3. Tijuana Joe's 000 Xxxxxxx Xxxxx Xxxx Xxxxxxxx, XX
Schedule D-1
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SCHEDULE E
PROPERTIES WHICH ARE NOT TRIPLE NET LEASED
1. Puerta Vallarta - closed 000 Xxxx Xxxxxxxx Xxxx. Xxxxxx, XX
2. Chili's 0000 X-00 X. Xxxxx Xxxxxx, XX
3. Pilot Point Bank 0000 X-00 X. Xxxxx Xxxxxx, XX
4. Red Pepper Chinese 0000 X-00 X. Xxxxx Xxxxxx, XX
5. Tumbleweeds 000 Xxxxxxxxx-Xxxx Xxxxxxxxx Xx. Xxxx Xxxxxxxxx, XX
6. BK - closed 0000 Xxxxx Xxxxxxx Xxxx Xxxxxxx Xxxxx, XX
7. BK 0000 Xxxxxxx Xxxx Xxxxxxx, XX
Schedule E-1
