U.S. RESTAURANT PROPERTIES OPERATING L.P.
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NOTE PURCHASE AGREEMENT
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DATED AS OF JANUARY 31, 1997
$12,500,000
8.06% SERIES A SENIOR SECURED GUARANTIED NOTES DUE JANUARY 31, 2000
$27,500,000
8.30% SERIES B SENIOR SECURED GUARANTIED NOTES DUE JANUARY 31, 2002
GUARANTIED BY:
U.S. RESTAURANT PROPERTIES MASTER L.P.
U.S. RESTAURANT PROPERTIES BUSINESS TRUST I
U.S. RESTAURANT PROPERTIES BUSINESS TRUST II
USRP (WEST VIRGINIA) PARTNERS, L.P.
RESTAURANT RENOVATION PARTNERS, L.P.
U.S. RESTAURANT PROPERTIES DEVELOPMENT, L.P.
USRP (LINCOLN), LTD.
USRP (XXXXXX), LTD.
USRP (CAROLINA), LTD.
TABLE OF CONTENTS
(NOT A PART OF THE AGREEMENT)
PAGE
1. PURCHASE AND SALE OF NOTES. . . . . . . . . . . . . . . . 2
1.1 The Notes. . . . . . . . . . . . . . . . . . . . . . 2
1.2 The Closing. . . . . . . . . . . . . . . . . . . . . 2
1.3 Purchase for Investment; ERISA.. . . . . . . . . . . 3
1.4 Failure to Tender, Failure of Conditions.. . . . . . 5
1.5 Expenses.. . . . . . . . . . . . . . . . . . . . . . 5
2. WARRANTIES AND REPRESENTATIONS. . . . . . . . . . . . . . 5
2.1 Nature of Business.. . . . . . . . . . . . . . . . . 6
2.2 Financial Statements; Indebtedness; Material
Adverse Change. . . . . . . . . . . . . . . . . . . 6
2.3 Subsidiaries and Affiliates. . . . . . . . . . . . . 7
2.4 Title to Properties; Patents, Trademarks, etc. . . . 7
2.5 Taxes. . . . . . . . . . . . . . . . . . . . . . . . 8
2.6 Pending Litigation.. . . . . . . . . . . . . . . . . 8
2.7 Full Disclosure. . . . . . . . . . . . . . . . . . . 9
2.8 Organization and Authority.. . . . . . . . . . . . . 9
2.9 Charter Instruments, Other Agreements. . . . . . . . 11
2.10 Restrictions on Company and Guarantors.. . . . . . . 11
2.11 Compliance with Law. . . . . . . . . . . . . . . . . 11
2.12 ERISA, etc.. . . . . . . . . . . . . . . . . . . . . 12
2.13 Environmental Compliance.. . . . . . . . . . . . . . 13
2.14 Sale of Notes is Legal and Authorized; Obligations are
Enforceable. . . . . . . . . . . . . . . . . . . . . 14
2.15 Governmental Consent; Certain Laws.. . . . . . . . . 15
2.16 Private Offering of Notes. . . . . . . . . . . . . . 15
2.17 No Defaults under Notes. . . . . . . . . . . . . . . 15
2.18 Use of Proceeds of Notes.. . . . . . . . . . . . . . 16
2.19 Company and Guarantors.. . . . . . . . . . . . . . . 16
2.20 Solvency.. . . . . . . . . . . . . . . . . . . . . . 16
2.21 Insurance. . . . . . . . . . . . . . . . . . . . . . 17
2.22 True and Correct Copies. . . . . . . . . . . . . . . 17
3. CLOSING CONDITIONS. . . . . . . . . . . . . . . . . . . . 17
3.1 Opinions of Counsel. . . . . . . . . . . . . . . . . 17
3.2 Warranties and Representations True; Compliance
with Financing Documents. . . . . . . . . . . . . . 18
3.3 Officers' Certificates.. . . . . . . . . . . . . . . 18
3.4 Legality.. . . . . . . . . . . . . . . . . . . . . . 19
3.5 Private Placement Numbers. . . . . . . . . . . . . . 19
3.6 Expenses.. . . . . . . . . . . . . . . . . . . . . . 19
3.7 Other Purchasers.. . . . . . . . . . . . . . . . . . 19
3.8 Bank Credit Agreement. . . . . . . . . . . . . . . . 19
3.9 Intercreditor/Collateral Agency Agreement. . . . . . 19
3.10 Leases.. . . . . . . . . . . . . . . . . . . . . . . 20
3.11 Security Documents; Perfection.. . . . . . . . . . . 20
3.12 Compliance with this Agreement.. . . . . . . . . . . 20
3.13 Proceedings Satisfactory.. . . . . . . . . . . . . . 20
4. PAYMENTS. . . . . . . . . . . . . . . . . . . . . . . . . 20
4.1 Payment of Notes at Maturity.. . . . . . . . . . . . 21
4.2 Optional Prepayments.. . . . . . . . . . . . . . . . 21
4.3 Offer to Prepay upon Change in Control.. . . . . . . 22
4.4 Offer to Prepay upon Investment Grade Rating . . . . 23
4.5 Pro Rata Payments. . . . . . . . . . . . . . . . . . 25
4.6 Notation of Notes on Prepayment. . . . . . . . . . . 25
4.7 No Other Optional Prepayments. . . . . . . . . . . . 26
4.8 Interest Payments. . . . . . . . . . . . . . . . . . 26
4.9 Payments on Notes. . . . . . . . . . . . . . . . . . 26
i
5. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES;
LIMITATION ON TRANSFER. . . . . . . . . . . . . . . . . . 27
5.1 Registration of Notes. . . . . . . . . . . . . . . . 27
5.2 Exchange of Notes. . . . . . . . . . . . . . . . . . 27
5.3 Replacement of Notes.. . . . . . . . . . . . . . . . 28
5.4 Issuance Taxes.. . . . . . . . . . . . . . . . . . . 28
5.5 Execution and Delivery of Notes by Guarantors. . . . 28
6. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . 28
6.1 Payment of Taxes and Claims. . . . . . . . . . . . . 28
6.2 Maintenance of Properties; Existence; etc. . . . . . 29
6.3 Payment of Notes and Maintenance of Office.. . . . . 30
6.4 Fixed Charges Coverage Ratio.. . . . . . . . . . . . 30
6.5 Consolidated Partners' Capital; Distributions. . . . 30
6.6 Maintenance of Consolidated Funded Debt. . . . . . . 32
6.7 Merger, Consolidation, etc.. . . . . . . . . . . . . 32
6.8 Sale of Assets, Etc. . . . . . . . . . . . . . . . . 33
6.9 Liens. . . . . . . . . . . . . . . . . . . . . . . . 34
6.10 Unencumbered Asset Ratio.. . . . . . . . . . . . . . 37
6.11 Additional Security. . . . . . . . . . . . . . . . . 37
6.12 Transactions with Affiliates.. . . . . . . . . . . . 39
6.13 Restrictions on Dividends, etc.. . . . . . . . . . . 39
6.14 Nature of Business.. . . . . . . . . . . . . . . . . 40
6.15 Pension Plans. . . . . . . . . . . . . . . . . . . . 40
6.16 Private Offering.. . . . . . . . . . . . . . . . . . 41
6.17 Amendment of Partnership Documents . . . . . . . . . 41
6.18 Post-Closing Matters . . . . . . . . . . . . . . . . 41
6.19 Excluded Securitization Subsidiary . . . . . . . . . 41
7. INFORMATION AS TO PARENT, COMPANY AND OTHER SUBSIDIARIES. 42
7.1 Financial and Business Information.. . . . . . . . . 42
7.2 Officers' Certificates.. . . . . . . . . . . . . . . 45
7.3 Accountants' Certificates. . . . . . . . . . . . . . 46
7.4 Inspection.. . . . . . . . . . . . . . . . . . . . . 46
7.5 Confidential Information . . . . . . . . . . . . . . 46
8. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . 47
8.1 Nature of Events.. . . . . . . . . . . . . . . . . . 47
8.2 Default Remedies.. . . . . . . . . . . . . . . . . . 50
8.3 Annulment of Acceleration of Notes.. . . . . . . . . 52
9. INTERPRETATION OF THIS AGREEMENT. . . . . . . . . . . . . 52
9.1 Terms Defined. . . . . . . . . . . . . . . . . . . . 52
9.2 GAAP.. . . . . . . . . . . . . . . . . . . . . . . . 74
9.3 Directly or Indirectly.. . . . . . . . . . . . . . . 74
9.4 Section Headings and Table of Contents and
Construction . . . . . . . . . . . . . . . . . . . . 75
9.5 Governing Law. . . . . . . . . . . . . . . . . . . . 75
9.6 General Interest Provisions. . . . . . . . . . . . . 75
10. GUARANTY AND OTHER RIGHTS AND UNDERTAKINGS. . . . . . . . 76
10.1 Guarantied Obligations . . . . . . . . . . . . . . . 76
10.2 Performance Under This Agreement . . . . . . . . . . 77
10.3 Waivers. . . . . . . . . . . . . . . . . . . . . . . 77
10.4 Certain Waivers of Subrogation, Reimbursement and
Indemnity. . . . . . . . . . . . . . . . . . . . . . 78
10.5 Releases . . . . . . . . . . . . . . . . . . . . . . 78
10.6 Marshaling . . . . . . . . . . . . . . . . . . . . . 79
10.7 Liability. . . . . . . . . . . . . . . . . . . . . . 79
10.8 Primary Obligation . . . . . . . . . . . . . . . . . 80
10.9 Election to Perform Obligations. . . . . . . . . . . 80
10.10 No Election . . . . . . . . . . . . . . . . . . . . 80
10.11 Severability. . . . . . . . . . . . . . . . . . . . 81
10.12 Other Enforcement Rights. . . . . . . . . . . . . . 81
10.13 Delay or Omission; No Waiver. . . . . . . . . . . . 81
ii
10.14 Restoration of Rights and Remedies. . . . . . . 81
10.15 Cumulative Remedies . . . . . . . . . . . . . . 81
10.16 Survival. . . . . . . . . . . . . . . . . . . . 82
10.17 No Setoff, Counterclaim or Other Deduction. . . 82
10.18 Separate Instruments. . . . . . . . . . . . . . 82
11. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . 82
11.1 Communications. . . . . . . . . . . . . . . . . 82
11.2 Reproduction of Documents . . . . . . . . . . . 82
11.3 Survival . . . . . . . . . . . . . . . . . . . 83
11.4 Successors and Assigns. . . . . . . . . . . . . 83
11.5 Amendment and Waiver. . . . . . . . . . . . . . 83
11.6 Expenses. . . . . . . . . . . . . . . . . . . . 85
11.7 Environmental Indemnity . . . . . . . . . . . . 86
11.8 Waiver of Jury Trial; Consent to Jurisdiction;
Etc. . . . . . . . . . . . . . . . . . . . . . 86
11.9 Release. . . . . . . . . . . . . . . . . . . . 87
11.10 Indemnification of Each Holder. . . . . . . . . 88
11.11 Entire Agreement; Oral Agreements Ineffective . 88
11.12 Duplicate Originals, Execution in Counterpart.. 88
Annex 1 -- Information as to Purchasers
Annex 2 -- Payment Instructions at Closing; Addresses for Notices
Annex 3 -- Information as to Company and Guarantors
Annex 4 -- Mortgages and Assignment of Rents (Closing and Post-Closing
Procedures)
Exhibit A1 -- Form of Series A Note
Exhibit A2 -- Form of Series B Note
Exhibit B1 -- Form of Closing Opinion of Counsel to the Company and the
Guarantors
Exhibit B2 -- Form of Closing Opinion of Special Counsel to the Purchasers
Exhibit C1 -- Form of Officers' Certificate of the Company
Exhibit C2 -- Form of Officers' Certificate of the Guarantors (Limited
Partnership)
Exhibit C3 -- Form of Officers' Certificate of the Guarantors
(Business Trust)
Exhibit D1 -- Form of Secretary's Certificate of the Company
Exhibit D2 -- Form of Secretary's Certificate of the Guarantors (Limited
Partnership)
Exhibit D3 -- Form of Secretary's Certificate of the Guarantors (Business
Trust)
Exhibit E -- Form of Intercreditor/Collateral Agency Agreement
Exhibit F -- Forms of Mortgages and Assignments of Rent
iii
U.S. RESTAURANT PROPERTIES OPERATING L.P.
U.S. RESTAURANT PROPERTIES MASTER L.P.
U.S. RESTAURANT PROPERTIES BUSINESS TRUST I
U.S. RESTAURANT PROPERTIES BUSINESS TRUST II
USRP (WEST VIRGINIA) PARTNERS, L.P.
RESTAURANT RENOVATION PARTNERS, L.P.
U.S. RESTAURANT PROPERTIES DEVELOPMENT, L.P.
USRP (LINCOLN), LTD.
USRP (XXXXXX), LTD.
USRP (CAROLINA), LTD.
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NOTE PURCHASE AGREEMENT
---------------------------------------------
$12,500,000
8.06% SERIES A SENIOR SECURED GUARANTIED NOTES DUE JANUARY 31, 2000
$27,500,000
8.30% SERIES B SENIOR SECURED GUARANTIED NOTES DUE JANUARY 31, 2002
Dated as of January 31, 1997
[TO BE SEPARATELY ADDRESSED TO EACH OF THE
PURCHASERS LISTED ON ANNEX 1]
Ladies and Gentlemen:
U.S. RESTAURANT PROPERTIES OPERATING L.P. (together with its successors
and assigns, the "COMPANY"), a Delaware limited partnership, U.S. RESTAURANT
PROPERTIES MASTER L.P. (together with its successors and assigns, the
"PARENT"), a Delaware limited partnership, U.S. RESTAURANT PROPERTIES
BUSINESS TRUST I (together with its successors and assigns, "BUSINESS TRUST
I"), a Delaware business trust, U.S. RESTAURANT PROPERTIES BUSINESS TRUST II,
a Delaware business trust (together with its successors and assigns,
"BUSINESS TRUST II"), USRP (WEST VIRGINIA) PARTNERS, L.P., a Texas limited
partnership (together with its successors and assigns, "WEST VIRGINIA
PARTNERS"), RESTAURANT RENOVATION PARTNERS, L.P., a Texas limited partnership
(together with its successors and assigns, "RENOVATION PARTNERS"), U.S.
RESTAURANT PROPERTIES DEVELOPMENT, L.P., a Texas limited partnership
(together with its successors and assigns, "PROPERTIES DEVELOPMENT"), USRP
(LINCOLN), LTD., a Texas limited partnership (together with its successors
and assigns, "LINCOLN"), USRP (XXXXXX), LTD., a Texas limited partnership
(together with its successors and assigns, "XXXXXX") and USRP (CAROLINA),
LTD., a Texas limited partnership (together with its successors and assigns,
"CAROLINA") (each of the Parent, Business Trust I, Business Trust II, West
Virginia Partners, Renovation Partners, Properties Development, Xxxxxxx,
Xxxxxx and Carolina, and each other Person who delivers a guaranty agreement
pursuant to Section 6.11, and each of their respective successors and
assigns, are collectively referred to herein as, the "GUARANTORS"), hereby
agree with you as follows:
U.S. RESTAURANT PROPERTIES OPERATING L.P. 1 NOTE PURCHASE AGREEMENT
1. PURCHASE AND SALE OF NOTES
1.1 THE NOTES.
(a) SERIES A NOTES. The Company will authorize the issuance of
Twelve Million Five Hundred Thousand Dollars ($12,500,000) in aggregate
principal amount of its 8.06% Series A Senior Secured Guarantied Notes Due
January 31, 2000 (the "SERIES A NOTES"). The Series A Notes shall be in
the form of Exhibit A1, and shall have the terms as herein and therein
provided, and the terms therein provided are incorporated herein by
reference as if set forth herein in full.
The term "SERIES A NOTES" as used herein shall include each Series
A Note delivered pursuant to this Agreement or the Other Note Purchase
Agreements referred to in Section 1.2(c) and each Series A Note
delivered in substitution or exchange for any such Series A Note
pursuant to Section 5.2 or Section 5.3 of this Agreement or of any such
Other Note Purchase Agreement.
(b) SERIES B NOTES. The Company will authorize the issuance of
Twenty Seven Million Five Hundred Thousand Dollars ($27,500,000) in
aggregate principal amount of its 8.30% Series B Senior Secured
Guarantied Notes Due January 31, 2002 (the "SERIES B NOTES"). The
Series B Notes shall be in the form of Exhibit A2, and shall have the
terms as herein and therein provided, and the terms therein provided
are incorporated herein by reference as if set forth herein in full.
The term "SERIES B NOTES" as used herein shall include each Series
B Note delivered pursuant to this Agreement or the Other Note Purchase
Agreements referred to in Section 1.2(c) and each Series B Note
delivered in substitution or exchange for any such Series B Note
pursuant to Section 5.2 or Section 5.3 of this Agreement or of any such
Other Note Purchase Agreement.
The term "NOTES" as used herein shall include all Series A Notes and
Series B Notes.
(c) SECURITY FOR THE NOTES; GUARANTY. The Notes are to be secured
by, and to have the benefit of, a pledge of and grant of a first priority
security interest in the Collateral to the Collateral Agent pursuant to the
Security Documents. The obligations of the Company under the Notes will be
guarantied by the Guarantors pursuant to the Unconditional Guaranty.
1.2 THE CLOSING.
(a) PURCHASE AND SALE OF NOTES. The Company hereby agrees to
sell to you and you hereby agree to purchase from the Company, in
accordance with the provisions hereof, the aggregate principal amount
of each Series of Notes set forth below your name on Annex 1 (in the
amount or amounts and with respect to the Series set forth therein) at
one hundred percent (100%) of the principal amount thereof.
(b) THE CLOSING. The closing (the "CLOSING") of the Company's
sale of Notes will be held on February [__], 1997 (the "CLOSING DATE")
at 10:00 a.m., local time, at the offices of your special counsel, Xxxx
& Xxxxxx, a Professional Corporation, Xxx Xxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000. At the Closing, the Company will deliver to you one
or more Notes (as set forth below your name on Annex 1), in the Series
and denominations indicated on Annex 1, in the aggregate principal
amount of your purchase, dated the Closing Date and payable to you or
payable as indicated on Annex 1, against payment by federal funds wire
transfer in immediately available funds of the purchase price thereof,
as directed by the Company on Annex 2.
U.S. RESTAURANT PROPERTIES OPERATING L.P. 2 NOTE PURCHASE AGREEMENT
(c) OTHER PURCHASERS. Contemporaneously with the execution and
delivery of this Agreement, the Company and the Guarantors are entering
into one or more separate note purchase agreements identical (except
for the name and signature of the purchaser) hereto (individually, an
"OTHER NOTE PURCHASE AGREEMENT," and, collectively, the "OTHER NOTE
PURCHASE AGREEMENTS;" this Agreement and the Other Note Purchase
Agreements, collectively, the "NOTE PURCHASE AGREEMENTS") with each
other purchaser (collectively, the "OTHER PURCHASERS") listed on Annex
1, providing for the sale to each Other Purchaser of Notes in the
Series and in the aggregate principal amount set forth below its name
on Annex 1. The sales of the Notes to you and to each Other Purchaser
are to be separate sales.
1.3 PURCHASE FOR INVESTMENT; ERISA.
(a) PURCHASE FOR INVESTMENT. You represent to the Company and the
Guarantors that you are purchasing the Notes listed on Annex 1 below your
name for your own account for investment and with no present intention of
distributing the Notes or any part thereof, but without prejudice to your
right at all times to:
(i) sell or otherwise dispose of all or any part of the Notes
under a registration statement filed under the Securities Act, or in
a transaction exempt from the registration requirements of the
Securities Act; and
(ii) have control over the disposition of all of your assets
to the fullest extent required by any applicable insurance law.
It is understood that, in making the representations set out in Section
2.14(a) and Section 2.15(a) of this Agreement, the Company and the
Guarantors are relying, to the extent applicable, upon your
representation in the immediately preceding sentence.
(b) ERISA. You represent, with respect to the funds with which you
are acquiring the Notes and solely for purposes of determining whether such
purchase is a "prohibited transaction" (as provided for in section 406 of
ERISA or section 4975 of the IRC), that all of such funds are from or are
attributable to one or more of:
(i) GENERAL ACCOUNT -- funds from your general account assets
or from assets of one or more segments of such general account, and
that all requirements for an exemption under DOL Prohibited
Transaction Exemption 95-60 (60 FR 35925, July 12, 1995) in respect of
such "employee benefit plans" have been satisfied; PROVIDED that you
are relying on the representations of the Company, the Guarantors and
the Managing General Partners set forth in Section 2.12(a) in making
such representation;
(ii) SEPARATE ACCOUNT -- a "separate account" (as defined in
section 3 of ERISA),
(A) Plans That Hold Less Than 10% of a Pooled Separate
Account -- in respect of which all requirements for an exemption
under DOL Prohibited Transaction Class Exemption 90-1 are met
with respect to the use of such funds to purchase the Notes,
(B) Identified Plan Assets -- that is comprised of
employee benefit plans identified by you in writing and with
respect to which the Company and the Guarantors hereby warrant
and represent that, as of the Closing Date, neither the Company,
any Guarantor nor any ERISA Affiliate is a "party in interest"
(as defined in section 3 of ERISA) or a
U.S. RESTAURANT PROPERTIES OPERATING L.P. 3 NOTE PURCHASE AGREEMENT
"disqualified person" (as defined in section 4975 of the IRC)
with respect to any plan so identified, or
(C) GUARANTEED SEPARATE ACCOUNT -- that is maintained
solely in connection with fixed contractual obligations of an
insurance company, under which any amounts payable, or credited,
to any employee benefit plan having an interest in such account
and to any participant or beneficiary of such plan (including
an annuitant) are not affected in any manner by the investment
performance of the separate account (as provided by 29 C.F.R.
Section 2510.3-101(h)(1)(iii));
(iii) QUALIFIED PROFESSIONAL ASSET MANAGER -- an "investment
fund" managed by a "qualified professional asset manager" (as such
terms are defined in Part V of DOL Prohibited Transaction Class
Exemption 84-14) with respect to which the requirements of such
exemption have been satisfied, PROVIDED that in making this
representation, it is assumed that the conditions set forth in Part
I(a), Part I(d) and Part I(e) of such Exemption have been satisfied;
(iv) EXCLUDED PLAN -- an employee benefit plan that is excluded
from the provisions of section 406(a) of ERISA by virtue of section
4(b) of ERISA; or
(v) EXEMPT FUNDS -- a separate investment account that is not
subject to ERISA and no funds of which come from assets of an
"employee benefit plan" or a "plan" or any other entity that is deemed
to hold assets of an "employee benefit plan" or a "plan" ("employee
benefit plan" is defined in section 3 of ERISA, and "plan" is defined
in section 4975(e)(1) of the IRC).
It is understood that, in making the representation set out in Section
2.12(b), the Company and the Guarantors are relying, to the extent
applicable, upon your representation in the immediately preceding sentence.
1.4 FAILURE TO TENDER, FAILURE OF CONDITIONS.
If at the Closing the Company fails to tender to you the Notes to be
purchased by you thereat, or if the conditions specified in Section 3 to be
fulfilled at the Closing have not been fulfilled, you may thereupon elect to
be relieved of all further obligations hereunder. Nothing in this Section
1.4 shall operate to relieve the Company from any of its obligations
hereunder or to waive any of your rights against the Company.
1.5 EXPENSES.
(a) GENERALLY. Whether or not the Notes are sold, the Company
will promptly (and in any event within thirty (30) days of receiving
any statement or invoice therefor) pay all fees, expenses and costs
relating hereto, including, but not limited to:
(i) the reasonable cost of reproducing this Agreement, the
Notes, each other Financing Document and each of the other documents
delivered in connection with the Closing;
(ii) the reasonable fees and disbursements of your special
counsel, Xxxx & Xxxxxx, and your special local counsel (if any)
incurred in connection herewith;
(iii) the reasonable cost of delivering to your home office
or custodian bank, insured to your satisfaction, the Notes purchased
by you at the Closing; and
U.S. RESTAURANT PROPERTIES OPERATING L.P. 4 NOTE PURCHASE AGREEMENT
(iv) the reasonable fees, expenses and costs incurred in
complying with each of the conditions to Closing set forth in Section
3.
(b) COUNSEL. Without limiting the generality of the foregoing,
it is agreed and understood that the Company will pay, at the Closing,
the statement for reasonable fees and disbursements of your special
counsel and your special local counsel (if any) presented at the
Closing and the Company will also pay, upon receipt of any statement
therefor, each additional statement for reasonable fees and
disbursements of your special counsel and your special local counsel
(if any) rendered after the Closing in connection with the issuance of
the Notes or the matters referred to in Section 1.5(a).
2. WARRANTIES AND REPRESENTATIONS
To induce you to enter into this Agreement and to purchase the Notes listed
on Annex 1 below your name, the Company, the Guarantors and the Managing General
Partners jointly and severally warrant and represent, as of the date hereof, as
follows:
2.1 NATURE OF BUSINESS.
The Placement Memorandum (a copy of which previously has been delivered to
you) correctly describes the general nature of the business and principal
Properties of the Parent, each of the other Guarantors, the Company and the
Managing General Partners as of the Closing Date.
2.2 FINANCIAL STATEMENTS; INDEBTEDNESS; MATERIAL ADVERSE CHANGE.
(a) FINANCIAL STATEMENTS. The Parent has provided you with its
consolidated financial statements described in PART 2.2(a) OF ANNEX 3.
Such financial statements have been prepared in accordance with GAAP
consistently applied, and present fairly, in all material respects, the
financial position of the Parent and its consolidated subsidiaries as
of such dates and the results of their operations and cash flows for
such periods. All such financial statements include the accounts of
all subsidiaries of the Parent for the respective periods during which
a subsidiary relationship has existed.
(b) DEBT. PART 2.2(b) OF ANNEX 3 lists all Debt of the Company, the
Guarantors and the Managing General Partners as of the Closing Date, and
provides the following information with respect to each item of such Debt:
(i) the holder thereof;
(ii) the outstanding amount, as of the Closing Date;
(iii) the portion which is classified as current under GAAP;
(iv) the collateral securing such Debt, if any; and
(v) the maturity thereof.
(c) MATERIAL ADVERSE CHANGE. Since December 31, 1995 there has
been no change in the business, prospects, profits, Properties or
condition (financial or otherwise) of the Company, any of the
Guarantors or any of the Managing General Partners, except changes in
the ordinary course of business that, individually or in the aggregate
for all such changes, could not reasonably be expected to have a
Material Adverse Effect.
U.S. RESTAURANT PROPERTIES OPERATING L.P. 5 NOTE PURCHASE AGREEMENT
(d) SUMMARY AND PRO FORMA FINANCIAL INFORMATION. All statements
or summaries of historical financial condition and performance of the
Parent, the Company and the other Subsidiaries included in the
Placement Memorandum have been derived from financial statements and
information prepared on a basis of accounting consistent with GAAP and
with the accounting principles currently used by the Parent, to the
extent applicable, except as noted therein. All PRO FORMA information
with respect to the Parent, the Company and the other Subsidiaries
included in the Placement Memorandum (collectively, the "PRO FORMA
FINANCIAL INFORMATION") has been derived from financial statements and
information prepared on a basis of accounting consistent with GAAP and
with the accounting principles currently used by the Parent, except as
noted therein, and all material assumptions on which the Pro Forma
Financial Information were based are disclosed therein. The Pro Forma
Financial Information has been prepared in good faith, have a
reasonable basis and represent the good faith opinion of the Company as
to the projected results of the operations of the Company. The
estimates of future performance and financial condition set forth in
the Pro Forma Financial Information, taken as a whole, are, in the good
faith opinion of the Company, reasonably attainable, subject to the
uncertainties and approximations inherent in any projections. No
material events or facts have occurred or been discovered by the
Company since the preparation of the Pro Forma Financial Information
that would cause the Pro Forma Financial Information, taken as a whole,
not to be reasonably attainable, and the Company does not have, on the
Closing Date, any material obligations (whether accrued, matured,
absolute, actual, contingent or otherwise) that are not reflected in
the Pro Forma Financial Information, other than agreements to purchase
real estate entered into in the ordinary course of the Company's
business.
2.3 SUBSIDIARIES AND AFFILIATES.
There are no Subsidiaries other than the Company, Business Trust I,
Business Trust II, West Virginia Partners, Renovation Partners, Xxxxxxx,
Xxxxxx, Carolina, Restaurant Acquisition Corp., USRP Renovation Corp. and
Restaurant Contractor Corp. PART 2.3 OF ANNEX 3 sets forth:
(a) the percentage of the equity interests of each Subsidiary owned
by the Parent and the Company;
(b) the name of each officer and director of each Managing General
Partner;
(c) a description of the Affiliates (other than individuals) and the
nature of their affiliation; and
(d) the name of each Person that owns more than five percent (5%)
of any class of the capital stock of each Managing General Partner.
Each of the Parent and the Company has good title to all of the equity
interests it purports to own of each Subsidiary, free and clear in each case
of any Lien.
2.4 TITLE TO PROPERTIES; PATENTS, TRADEMARKS, ETC.
(a) PROPERTIES. Each of the Company and the Guarantors has title
to each of its Properties reflected in the most recent consolidated
balance sheet of the Parent referred to in PART 2.2(A) OF ANNEX 3
(except as sold or otherwise disposed of in the ordinary course of
business), except where the failure to have such title could not
reasonably be expected to have a Material Adverse Effect. All such
Property is free from Liens except for Liens (a) in favor of the
Collateral Agent, (b) that would be permitted, after the Collateral
Release Date, by Section 6.9(a), or (c) permitted by the Security
Documents.
U.S. RESTAURANT PROPERTIES OPERATING L.P. 6 NOTE PURCHASE AGREEMENT
(b) INTERESTS IN REAL PROPERTY. PART 2.4(b) OF ANNEX 3 correctly
describes each interest of the Company and the Guarantors in real Property,
the holder or holders of each such interest, and the nature (fee simple,
leasehold, easement or otherwise) and the extent of such interest.
(c) LEASES. All leases necessary for the conduct of the
respective businesses of the Company and the Guarantors (including,
without limitation, all Leasehold Property Leases and all Restaurant
Operator Leases) are valid and subsisting and are in full force and
effect and no default or event of default that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect has occurred or exists thereunder. PART 2.4(c) OF ANNEX 3
correctly identifies each of such leases, setting forth in each case
the lessor and lessee, the location of the subject Property and the
expiration date of such lease and whether such lease is a Leasehold
Property Lease or a Restaurant Operator Lease.
(d) UCC MATTERS. Since its organization, neither the Company nor
any Guarantor has
(i) changed its name or operated all or a portion of its
business under any name other than its present legal name, or
(ii) changed the address of its principal executive office,
except, in each case, as set forth on PART 2.4(d) OF ANNEX 3.
(e) CERTAIN INTANGIBLES. Each of the Company and the Guarantors
owns, possesses or has the right to use all of the patents, trademarks,
service marks, trade names, copyrights and licenses, and rights with
respect thereto, necessary for the present and currently planned future
conduct of its business, without any known conflict with the rights of
others, except for such failures to own, possess, or have the right to
use, or for such conflicts, that, individually or in the aggregate for
all such failures and conflicts, could not reasonably be expected to
have a Material Adverse Effect.
2.5 TAXES.
All tax returns required to be filed by each of the Company, the
Guarantors, the Managing General Partners and any other Person with which the
Company, any Guarantor or any Managing General Partner files or has filed a
consolidated return in any jurisdiction have been filed on a timely basis,
and all taxes, assessments, fees and other governmental charges upon the
Company, any of the Guarantors or any of the Managing General Partners or
upon their respective Properties, income or franchises, that are due and
payable have been paid, except for such tax returns and such tax payments
that, in the aggregate for all such tax returns and payments, could not
reasonably be expected to have a Material Adverse Effect. Neither the
Company, any of the Guarantors nor any of the Managing General Partners knows
of any proposed property, use or other tax assessment against any of the
Company, the Guarantors, the Managing General Partners or any of their
respective Properties which tax assessment could reasonably be expected to
have a Material Adverse Effect, that, in each such case, is not reflected in
full in the most recent balance sheet referred to in PART 2.2(a) OF ANNEX 3.
2.6 PENDING LITIGATION.
(a) PENDING LITIGATION. There are no proceedings, actions or
investigations pending or, to the knowledge of the Company, the
Guarantors or the Managing General Partners, threatened against or
affecting the Company, any Guarantor or any Managing General Partner in
any court or before any Governmental Authority or arbitration board or
tribunal that, individually or in the aggregate for all such
proceedings, actions and
U.S. RESTAURANT PROPERTIES OPERATING L.P. 7 NOTE PURCHASE AGREEMENT
investigations, could reasonably be expected to have a Material Adverse
Effect.
(b) VIOLATIONS. Neither the Company, any Guarantor nor any
Managing General Partner is in default with respect to any judgment,
order, writ, injunction or decree of any court, Governmental Authority,
arbitration board or tribunal that, individually or in the aggregate
for all such defaults, could reasonably be expected to have a Material
Adverse Effect.
2.7 FULL DISCLOSURE.
The financial statements referred to in PART 2.2(A) OF ANNEX 3 do not,
nor does this Agreement, any other Financing Document, the Placement
Memorandum or any written statement furnished by or on behalf of the Company,
any of the Guarantors or any of the Managing General Partner to you in
connection with the negotiation or the closing of the sale of the Notes,
contain any untrue statement of a material fact or omit a material fact
necessary to make the statements contained therein and herein not misleading.
There is no fact that the Company, the Guarantors and the Managing General
Partners have not disclosed to you in the Placement Memorandum that has had
or, so far as any such Person can now reasonably foresee, could reasonably be
expected to have a Material Adverse Effect.
2.8 ORGANIZATION AND AUTHORITY.
(a) THE COMPANY, THE PARENT, WEST VIRGINIA PARTNERS, RENOVATION
PARTNERS, PROPERTIES DEVELOPMENT, XXXXXXX, XXXXXX AND CAROLINA. Each
of the Company, the Parent, West Virginia Partners, Renovation
Partners, Properties Development, Xxxxxxx, Xxxxxx and Carolina:
(i) is a limited partnership duly organized, validly existing
and in good standing under the laws of its jurisdiction of formation;
(ii) has all legal and partnership power and authority to own
and operate its Properties and to carry on its business as now
conducted and as presently proposed to be conducted;
(iii) has all licenses, certificates, permits, franchises and
other governmental authorizations necessary to own and operate its
Properties and to carry on its business as now conducted and as
presently proposed to be conducted, except where the failure to have
such licenses, certificates, permits, franchises and other
governmental authorizations, individually or in the aggregate for all
such failures, could not reasonably be expected to have a Material
Adverse Effect; and
(iv) has duly qualified or has been duly licensed, and is
authorized to do business and is in good standing, as a foreign
limited partnership, in each state (each of which states is listed in
PART 2.8 OF ANNEX 3) where the failure to be so qualified or licensed
and authorized and in good standing, individually or in the aggregate
for all such failures, could reasonably be expected to have a Material
Adverse Effect.
(b) BUSINESS TRUST I AND BUSINESS TRUST II. Each of Business Trust
I and Business Trust II:
(i) has been duly organized and is validly existing and in
good standing under the laws of the State of Delaware;
U.S. RESTAURANT PROPERTIES OPERATING L.P. 8 NOTE PURCHASE AGREEMENT
(ii) has all power and authority to own and operate its
Properties and to carry on its business as now conducted and as
presently proposed to be conducted;
(iii) has all licenses, certificates, permits, franchises and
other governmental authorizations necessary to own and operate its
Properties and to carry on its business as now conducted and as
presently proposed to be conducted, except where the failure to have
such licenses, certificates, permits, franchises and other
governmental authorizations, individually or in the aggregate for all
such failures, could not reasonably be expected to have a Material
Adverse Effect; and
(iv) has duly qualified or has been duly licensed, and is
authorized to do business and is in good standing, as a foreign
entity, in each state (each of which states is listed in PART 2.8 OF
ANNEX 3) where the failure to be so qualified or licensed and
authorized and in good standing, individually or in the aggregate for
all such failures, could reasonably be expected to have a Material
Adverse Effect.
(c) MANAGING GENERAL PARTNERS. Each of the Managing General
Partners:
(i) is a corporation duly incorporated, validly existing and
in good standing under the laws of the state of its incorporation;
(ii) has all legal and corporate power and authority to own and
operate its Properties and to carry on its business as now conducted
and as presently proposed to be conducted;
(iii) has all licenses, certificates, permits, franchises and
other governmental authorizations necessary to own and operate its
Properties and to carry on its business as now conducted and as
presently proposed to be conducted, except where the failure to have
such licenses, certificates, permits, franchises and other
governmental authorizations, individually or in the aggregate for all
such failures, could not reasonably be expected to have a Material
Adverse Effect; and
(iv) has duly qualified or has been duly licensed, and is
authorized to do business and is in good standing, as a foreign
corporation, in each state (each of which states is listed in PART 2.8
OF ANNEX 3) where the failure to be so qualified or licensed and
authorized and in good standing, individually or in the aggregate for
all such failures, could reasonably be expected to have a Material
Adverse Effect.
2.9 CHARTER INSTRUMENTS, OTHER AGREEMENTS.
Neither the Company, any Guarantor nor any Managing General Partner is
in violation in any respect of any term of their respective Partnership
Agreement or any other constitutive document, instrument or bylaw, as the
case may be, or of any agreement relating to, or providing the terms of, any
Debt specified in PART 2.2 OF ANNEX 3. Neither the Company, any Guarantor
nor any Managing General Partner is in violation of any term in any other
agreement or other instrument to which it is a party or by which it or any of
its Properties may be bound if the effect of such violation could reasonably
be expect to have a Material Adverse Effect.
Each Managing General Partner is the only general partner of its
respective Guarantor. The general partnership interest of the Managing
General Partners in each of their respective Guarantors is owned by such
Managing General Partner free and clear of any Liens. Each of the
Partnership Agreements constitutes the
U.S. RESTAURANT PROPERTIES OPERATING L.P. 9 NOTE PURCHASE AGREEMENT
legal, valid and binding obligation of the Managing General Partner a party
thereto, enforceable against such Managing General Partner in accordance with
its terms, except as limited by applicable bankruptcy, reorganization,
arrangement, insolvency, moratorium, or other similar laws affecting the
enforceability of creditors' rights generally, and subject to the
availability of equitable remedies.
2.10 RESTRICTIONS ON COMPANY AND GUARANTORS.
Neither the Company, any Guarantor nor any Managing General Partner:
(a) is a party to any contract or agreement, or subject to any
partnership agreement, trust agreement, charter, bylaw or other restriction
that, individually or in the aggregate for all such contracts, agreements,
partnership agreements, trust agreements, charters and restrictions, could
reasonably be expected to have a Material Adverse Effect;
(b) is a party to any contract or agreement that restricts the
right or ability of such partnership, corporation or business trust to
incur Debt, other than this Agreement and the agreements listed in PART
2.10(b) OF ANNEX 3, none of which restricts the issuance and sale of
the Notes by the Company or the performance by the Company, any
Guarantor or any Managing General Partner of its respective obligations
under this Agreement, the Notes or any of the other Financing
Documents; or
(c) has agreed or consented to cause or permit in the future
(upon the happening of a contingency or otherwise) any of its Property,
whether now owned or hereafter acquired, to be subject to a Lien not
permitted by Section 6.9.
True, correct and complete copies of each of the agreements listed in PART
2.10(b) OF ANNEX 3 have been provided to you and your special counsel.
2.11 COMPLIANCE WITH LAW.
Each of the Company, the Guarantors and the Managing General Partners is
in compliance with all applicable laws, ordinances, governmental rules or
regulations (including, without limitation, all zoning, and subdivision
ordinances and building codes) to which it is subject, except where the
failure to so comply, individually or in the aggregate for all such
violations, could not reasonably be expected to have a Material Adverse
Effect.
2.12 ERISA, ETC.
(a) DISCLOSURE. PART 2.12(a) OF ANNEX 3 sets forth all ERISA
Affiliates and all "employee benefit plans" with respect to which the
Company, the Guarantors or the Managing General Partners or any
"affiliate" thereof is a "party-in-interest" or in respect of which the
Notes could constitute an "employer security" ("employee benefit plan"
and "party-in-interest" have the meanings specified in section 3 of
ERISA and "affiliate" and "employer security" have the meanings
specified in section 407(d) of ERISA).
(b) PROHIBITED TRANSACTIONS. The execution and delivery of this
Agreement and the issuance and sale of the Notes hereunder will not
result in a non-exempt prohibited transaction under section 406 of
ERISA or in connection with which a tax could be imposed pursuant to
sec-tion 4975(c)(1)(A) through section 4975(D), inclusive, of the IRC.
The representation set forth in the immediately preceding sentence is
made in reliance upon the representations in Section 1.3(b) as to the
source of funds used by you.
(c) PENSION PLANS.
U.S. RESTAURANT PROPERTIES OPERATING L.P. 10 NOTE PURCHASE AGREEMENT
(i) COMPLIANCE WITH ERISA. The Parent, the Company, the other
Guarantors, the Managing General Partners and the other ERISA
Affiliates and each Pension Plan are in compliance with ERISA, except
for such failures to comply that, in the aggregate for all such
failures, could not reasonably be expected to have a Material Adverse
Effect.
(ii) FUNDING STATUS. No "accumulated funding deficiency" (as
defined in section 302 of ERISA and section 412 of the IRC), whether
or not waived, exists with respect to any Pension Plan.
(iii) PBGC. No liability to the PBGC has been or is expected
to be incurred by the Parent, the Company, the other Guarantors, the
Managing General Partners or any other ERISA Affiliate with respect
to any Pension Plan that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect. No
circumstance exists that constitutes grounds under section 4042 of
ERISA entitling the PBGC to institute proceedings to terminate, or
appoint a trustee to administer, any Pension Plan or trust created
thereunder, nor has the PBGC instituted any such proceeding.
(iv) MULTIEMPLOYER PLANS. Except as set forth on PART 2.12(c)
OF ANNEX 3, neither the Parent, the Company, the other Guarantors, the
Managing General Partners nor any other ERISA Affiliate has incurred
or presently expects to incur any withdrawal liability under Title IV
of ERISA with respect to any Multiemployer Plan. Except as set forth
on PART 2.12(c) OF ANNEX 3, there have been no "reportable events" (as
defined in section 4043 of ERISA) with respect to any Multiemployer
Plan that could result in the termination of such Multiemployer Plan
and give rise to a liability of the Parent, the Company, the other
Guarantors, the Managing General Partner or any other ERISA Affiliate
in respect thereof.
(d) NO FOREIGN PENSION PLANS. Neither the Company, any Guarantor
nor any Managing General Partner now has, or at any time has had, any
Foreign Pension Plan.
2.13 ENVIRONMENTAL COMPLIANCE.
(a) COMPLIANCE. Each of the Company, the Guarantors and the
Managing General Partners is in compliance with all Environmental
Protection Laws in effect in each jurisdiction where it is presently
doing business and with respect to which the failure so to comply,
individually or in the aggregate for all such failures, could reasonably
be expected to have a Material Adverse Effect.
(b) LIABILITY. Neither the Company, any Guarantor nor any Managing
General Partner is subject to any liability under any Environmental
Protection Laws that, individually or in the aggregate for all such
liabilities, could reasonably be expected to have a Material Adverse
Effect.
(c) NOTICES. Neither the Company, any Guarantor nor any Managing
General Partner has received any:
(i) notice from any Governmental Authority by which any of its
present or previously-owned or leased Properties has been identified
in any manner by any Governmental Authority as a hazardous substance
disposal or removal site, "Super Fund" clean-up site or candidate for
removal or closure pursuant to any Environmental Protection Law;
U.S. RESTAURANT PROPERTIES OPERATING L.P. 11 NOTE PURCHASE AGREEMENT
(ii) notice of any Lien arising under or in connection with any
Environmental Protection Law that has attached to any revenues of, or
to, any of its owned or leased Properties; or
(iii) any communication, written or oral, from any Governmental
Authority concerning action or omission by the Company or such
Guarantor in connection with its ownership or leasing of any Property
resulting in the release of any Hazardous Substance in violation of
any Environmental Protection Law;
where the effect of such notice or communication individually, or in the
aggregate for all such notices and communications, could reasonably be
expected to have a Material Adverse Effect.
(d) ENVIRONMENTAL ASSESSMENTS. Except for those real Properties
set forth on PART 2.13(d) OF ANNEX 3, a Phase I environmental assessment
of all of the real Properties owned or leased by any one or more of the
Company and each of the Guarantors at any time on or prior to the Closing
Date has been obtained and reviewed by a Senior Officer of the Company or
the Parent, as the case may be. Except as set forth in PART 2.13(d) OF
ANNEX 3, no such Phase I environmental assessment has revealed any
potential environmental issue that would warrant the conducting of a
Phase II environmental assessment or any further action on the part of
the Company or any Guarantor in respect thereof which would require
remediation under existing laws. With respect to each of those real
Properties identified on PART 2.13(d) OF ANNEX 3, the Company or one of
the Guarantors has received contractual representations from Burger King
Corporation as to the lack of environmental problems with respect to such
Properties which in the good faith judgment of the Company, were
reasonable in connection with the purchase of each such Property.
2.14 SALE OF NOTES IS LEGAL AND AUTHORIZED; OBLIGATIONS ARE ENFORCEABLE.
(a) SALE OF NOTES IS LEGAL AND AUTHORIZED. Each of the issuance,
sale and delivery of the Notes by the Company, the execution and delivery
of this Agreement and each other Financing Document by the Company and the
Guarantors and compliance by the Company and each of the Guarantors with
all of the provisions of this Agreement, the Notes and each of the other
Financing Documents:
(i) is within the partnership or trust powers, as the case may
be, of the Company and each Guarantor; and
(ii) is legal and does not conflict with, result in any breach
of any of the provisions of, constitute a default under, or result in
the creation of any Lien upon any Property of the Company, any
Guarantor or any Managing General Partner under the provisions of, any
agreement, any Partnership Agreement, any other constitutive
documents, or any other instrument to which it is a party or by which
it or any of its respective Properties may be bound.
(b) OBLIGATIONS ARE ENFORCEABLE.
(i) This Agreement and each of the other Financing Documents
has been duly authorized by all necessary action on the part of the
Company, the Guarantors and the Managing General Partners, has been
duly executed and delivered by authorized officers of each of the
Company, the Guarantors and the Managing General Partners, and
constitutes a legal, valid and binding obligation of the Company,
the Guarantors and the Managing General Partners, enforceable in
accordance with its respective terms; and
U.S. RESTAURANT PROPERTIES OPERATING L.P. 12 NOTE PURCHASE AGREEMENT
(ii) the Notes have been duly authorized by all necessary
action on the part of the Company, have been duly executed and
delivered by authorized officers of its Managing General Partner
on behalf of the Company, and constitute legal, valid and binding
obligations of the Company, enforceable in accordance with their
respective terms,
except that, in each case, the enforceability of this Agreement, the Notes
and the other Financing Documents may be:
(x) limited by applicable bankruptcy, reorganization,
arrangement, insolvency, moratorium or other similar laws affecting
the enforceability of creditors' rights generally; and
(y) subject to the availability of equitable remedies.
2.15 GOVERNMENTAL CONSENT; CERTAIN LAWS.
(a) GOVERNMENTAL CONSENT. Neither the nature of the Company, any
Guarantor or any Managing General Partner, or of any of their respective
businesses or Properties, nor any relationship between the Company, any
Guarantor or any Managing General Partner and any other Person, nor any
circumstance in connection with the offer, issuance, sale or delivery of
the Notes and the execution and delivery of this Agreement and each of
the other Financing Documents, is such as to require a consent, approval
or authorization of, or filing, registration or qualification with, any
Governmental Authority on the part of the Company, any of the Guarantors
or any of the Managing General Partner as a condition to the execution and
delivery of this Agreement and the other Financing Documents or the offer,
issuance, sale or delivery of the Notes (other than routine filings by the
Parent with the Securities and Exchange Commission, applicable state
securities commissions or any securities exchange on which the Securities
of the Parent are listed (which are not required to be made prior to the
Closing Date)).
(b) CERTAIN LAWS. Neither the Company, any Guarantor nor any
Managing General Partner is subject to regulation under, or otherwise
required to comply with any filing, registration or notice provisions of,
(i) the Investment Company Act of 1940, as amended, (ii) the Public Utility
Holding Company Act of 1935, as amended, (iii) the Transportation Acts of
the United States of America, 49 USC, as amended, or (iv) the Federal
Power Act, as amended.
2.16 PRIVATE OFFERING OF NOTES.
(a) OFFERING OF NOTES. Neither the Company, any Guarantor, any
Managing General Partner or the Placement Agents (the only Persons
authorized or employed by the Company, the Guarantors or the Managing
General Partners as agent, broker, dealer or otherwise in connection with
the offering or sale of the Notes or any similar Security of the Company
or any of the Guarantors) has offered any of the Notes or any similar
Security of the Company or any Guarantor for sale to, or solicited offers
to buy any thereof from, or otherwise approached or negotiated with
respect thereto with, any prospective purchaser, other than the number
of Institutional Investors (including you) set forth in PART 2.16(a) OF
ANNEX 3, each of whom was offered all or a portion of the Notes at
private sale for investment.
(b) REGISTRATION PROVISIONS. Neither the Company, any of the
Guarantors or any of the Managing General Partners, nor any agent acting
on their behalf, has taken any action that would subject the issue or
sale of the Notes to the registration provisions of section 5 of the
Securities Act or to the registration, qualification or other similar
provisions of any securities or "blue sky" law of any applicable
jurisdiction.
U.S. RESTAURANT PROPERTIES OPERATING L.P. 13 NOTE PURCHASE AGREEMENT
2.17 NO DEFAULTS UNDER NOTES.
No event has occurred and no condition exists that, upon the execution
and delivery of this Agreement and the other Financing Documents and the
issuance of the Notes, would constitute a Default or an Event of Default.
2.18 USE OF PROCEEDS OF NOTES.
(a) USE OF PROCEEDS. The Company will apply the proceeds from the
sale of the Notes in the manner specified in PART 2.18(a) OF ANNEX 3.
(b) MARGIN SECURITIES. None of the transactions contemplated
herein and in the Notes (including, without limitation, the use of the
proceeds from the sale of the Notes) violates, will violate or will
result in a violation of section 7 of the Exchange Act or any regulations
issued pursuant thereto, including, without limitation, Regulations G, T,
U and X of the Board of Governors of the Federal Reserve System, 12
C.F.R., Chapter II. The obligations of the Company and the Guarantors
under this Agreement, the Notes and the other Financing Documents are not
and will not be "directly" or "indirectly" secured (within the meaning of
such Regulation G) by any Margin Security, and no Notes are being sold on
the basis of any such collateral.
(c) ABSENCE OF FOREIGN OR ENEMY STATUS. Neither the sale of the
Notes nor the use of proceeds from the sale thereof will result in a
violation of any of the foreign assets control regulations of the United
States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended), or
any ruling issued thereunder or any enabling legislation or Presidential
Executive Order in connection therewith.
2.19 COMPANY AND GUARANTORS.
The Company and the Guarantors are operated as part of one consolidated
business entity and are directly dependent upon each other for and in
connection with their respective business activities and their respective
financial resources. The Guarantors will receive a direct economic and
financial benefit from the Debt incurred under this Agreement by the Company,
and the incurrence of such Debt is in the best interests of the Guarantors.
2.20 SOLVENCY.
(a) ASSETS GREATER THAN LIABILITIES. The fair value of the
business and assets of the Company and each Guarantor is in excess of the
amount that will be required to pay its liabilities (including, without
limitation, contingent, subordinated, unmatured and unliquidated
liabilities on existing debts, as such liabilities may become absolute
and matured), in each case both prior to and after giving effect to the
transactions contemplated by the Financing Documents.
(b) MEETING LIABILITIES. After giving effect to the transactions
contemplated by the Financing Documents, neither the Company nor any
Guarantor will
(i) be engaged in any business or transaction, or about to
engage in any business or transaction, for which it has unreasonably
small assets or capital (within the meaning of the Uniform Fraudulent
Transfer Act, the Uniform Fraudulent Conveyance Act and section 548 of
the Federal Bankruptcy Code), and
(ii) will be unable to pay its debts as they mature.
(c) INTENT. Neither of the Company nor any Guarantor is entering
into this Agreement with any intent to hinder, delay or defraud any current
or future creditors of the Company or any Guarantor.
U.S. RESTAURANT PROPERTIES OPERATING L.P. 14 NOTE PURCHASE AGREEMENT
2.21 INSURANCE.
Each of the Restaurant Operator Leases requires the "Tenant" or "Lessee"
thereunder to maintain, for the benefit of one or more of the Company and the
Guarantors, insurance substantially on the terms described in PART 2.21 OF
ANNEX 3. In addition to such insurance maintained pursuant to the Restaurant
Operator Leases, the Company and the Guarantors maintain such policies of
insurance which are consistent with industry practice for owners of triple
net leased real Properties, including, without limitation, commercial
liability coverage.
2.22 TRUE AND CORRECT COPIES.
The Company and the Guarantors have delivered to you and your special
counsel true, correct and complete copies of:
(a) the Partnership Agreements;
(b) all Leasehold Property Leases and Restaurant Operator Leases set
forth on PART 2.22 OF ANNEX 3; and
(c) the Bank Credit Agreement, together with all documents and
instruments executed in connection therewith (collectively, the "BANK DEBT
DOCUMENTS").
There are no agreements or understandings between or among any one or more of
the Company, the Guarantors, the Managing General Partners and the Banks,
except as set forth in the Bank Debt Documents.
3. CLOSING CONDITIONS
Your obligations under this Agreement, including, without limitation,
the obligation to purchase and pay for the Notes to be delivered to you at
the Closing, are subject to the conditions precedent set forth below, and the
failure by the Company and the Guarantors to satisfy all such conditions
shall, at your election, relieve you of all such obligations. The failure of
the Company and the Guarantors to satisfy such conditions shall not operate
to relieve the Company and the Guarantors of their obligations hereunder or
to waive any of your rights against the Company or the Guarantors.
3.1 OPINIONS OF COUNSEL.
You shall have received from
(a) Middleberg Xxxxxx & Gianna, counsel for the Company and the
Guarantors (together with such local counsel opinions, if any, agreed upon
prior to the Closing Date), and
(b) Xxxx & Xxxxxx, a Professional Corporation, your special counsel,
closing opinions, each dated as of the Closing Date, substantially in the
respective forms set forth in Exhibit B1 and Exhibit B2 hereto and as to such
other matters as you may reasonably request. This Section 3.1 shall
constitute direction by the Company and the Guarantors to such counsel named
in the foregoing clause (a) to deliver such closing opinions to you.
3.2 WARRANTIES AND REPRESENTATIONS TRUE; COMPLIANCE WITH FINANCING
DOCUMENTS.
(a) WARRANTIES AND REPRESENTATIONS TRUE. The warranties and
representations of the Company, the Guarantors and the Managing General
Partners contained in Section 2 and contained in the other Financing
U.S. RESTAURANT PROPERTIES OPERATING L.P. 15 NOTE PURCHASE AGREEMENT
Documents, shall be true on the Closing Date with the same effect as though
made on and as of that date.
(b) COMPLIANCE WITH FINANCING DOCUMENTS. The Company, the
Guarantors and the Managing General Partners shall have performed and
complied with all agreements and conditions contained in the Financing
Documents that are required to be performed or complied with by the
Company, the Guarantors and the Managing General Partners on or prior
to the Closing Date, and such performance and compliance shall remain
in effect on the Closing Date.
3.3 OFFICERS' CERTIFICATES.
You shall have received:
(a) a certificate dated the Closing Date and signed by two Senior
Officers of the Managing General Partner of the Company, substantially in
the form of Exhibit C1 hereto;
(b) with respect to each of the Guarantors that is a limited
partnership, a certificate dated the Closing Date and signed by two Senior
Officers of the Managing General Partner of such limited partnership,
substantially in the form of Exhibit C2 hereto;
(c) with respect to each of Business Trust I and Business Trust II,
a certificate dated the Closing Date and signed by a trustee of such
business trust, substantially in the form of Exhibit C3 hereto;
(d) a certificate dated the Closing Date and signed by the Secretary
or an Assistant Secretary of the Managing General Partner of the Company,
on behalf of the Company, substantially in the form of Exhibit D1 hereto;
(e) with respect to each of the Guarantors that is a limited
partnership, a certificate dated the Closing Date and signed by the
Secretary or an Assistant Secretary of the Managing General Partner
of such Guarantor, on behalf of such Guarantor, substantially in the
form of Exhibit D2 hereto; and
(f) with respect to each of the Guarantors which is a business
trust, a certificate dated the Closing Date and signed by a trustee of
such Guarantor, substantially in the form of Exhibit D3 hereto.
3.4 LEGALITY.
The Notes shall on the Closing Date qualify as a legal investment for
you under applicable insurance law (without regard to any "basket" or
"leeway" provisions), and such acquisition shall not subject you to any
penalty or other onerous condition contained in or pursuant to any such law
or regulation, and you shall have received such evidence as you may
reasonably request to establish compliance with this condition.
3.5 PRIVATE PLACEMENT NUMBERS.
The Company shall have obtained or caused to be obtained private
placement numbers for the Series A Notes and the Series B Notes from the
CUSIP Service Bureau of Standard & Poor's and you shall have been informed of
such private placement numbers.
3.6 EXPENSES.
All fees and disbursements required to be paid at the Closing pursuant
to Section 1.5(b) hereof shall have been paid in full.
U.S. RESTAURANT PROPERTIES OPERATING L.P. 16 NOTE PURCHASE AGREEMENT
3.7 OTHER PURCHASERS.
None of the Other Purchasers shall have failed to execute and deliver a
Note Purchase Agreement or to accept delivery of or make payment for the
Notes to be purchased by it on the Closing Date.
3.8 BANK CREDIT AGREEMENT.
The Company, the Parent, each of the Banks and the Bank Agent shall have
entered into an amendment or an amendment and restatement of the Bank Credit
Agreement on or before the Closing Date, in form and substance satisfactory
to you, and the Bank Credit Agreement shall be in full force and effect on
the Closing Date and no default or event of default shall exist thereunder.
All conditions to closing specified in such amendment of the Bank Credit
Agreement shall have been satisfied or waived on or prior to the Closing
Date. The Company shall have delivered to you copies of all Bank Debt
Documents, in each case certified as true and correct by a Senior Officer of
the Company, and the Bank Debt Documents shall be in full force and effect.
3.9 INTERCREDITOR/COLLATERAL AGENCY AGREEMENT.
The Collateral Agent, the Banks, the Bank Agent, the Company, the Other
Purchasers and you shall have entered into a intercreditor/collateral agency
agreement on the Closing Date, substantially in the form of Exhibit E (as
amended from time to time, the "INTERCREDITOR/COLLATERAL AGENCY AGREEMENT"),
and the Intercreditor/Collateral Agency Agreement shall be in full force and
effect on the Closing Date and each party thereto shall be in full compliance
with its obligations thereunder.
3.10 LEASES.
The Company shall have delivered to you copies of each of the Leasehold
Property Leases and Restaurant Operator Leases set forth on PART 2.22 OF
ANNEX 3, in each case certified as true and correct by a Senior Officer of
the Company, and each of such leases shall be in full force and effect.
3.11 SECURITY DOCUMENTS; PERFECTION.
(a) SECURITY DOCUMENTS. The Guarantors and the Collateral Agent,
as the case may be, shall have entered into all of the Mortgages and
Assignments of Rents and the other Security Documents, in each case, in
form and substance satisfactory to the Purchasers, as set forth in PART
A OF ANNEX 4 and all such Security Documents shall be in full force and
effect on the Closing Date and each party thereto shall be in full
compliance with its obligations thereunder. The Company shall have
delivered to you in accordance with such Annex 4 copies of all of the
Security Documents.
(b) PERFECTION OF LIENS, ETC. Except with regard to acceptable
post-closing procedures described on Annex 4, you shall have received
such title reports, evidences and other assurances, in each case
satisfactory to you, that all actions necessary to perfect the Liens of
the Collateral Agent in the Collateral shall have been taken in
accordance with the terms and provisions of the Security Documents, and
confirmation thereof received by you. The Liens of the Collateral Agent
in the Collateral shall be valid, enforceable and perfected, and the
Collateral shall be subject to no other Liens except those Liens
permitted pursuant to Section 6.9 and as permitted by the Security
Documents.
3.12 COMPLIANCE WITH THIS AGREEMENT.
Each of the Company and the Guarantors shall have performed and complied
with all agreements and conditions contained herein that are required to be
performed or complied with by the Company and the Guarantors on or prior to
the
U.S. RESTAURANT PROPERTIES OPERATING L.P. 17 NOTE PURCHASE AGREEMENT
Closing Date, and such performance and compliance shall remain in effect on
the Closing Date.
3.13 PROCEEDINGS SATISFACTORY.
All proceedings taken in connection with the issuance and sale of the
Notes and all documents and papers relating thereto shall be satisfactory to
you and your special counsel. You and your special counsel shall have
received copies of such documents and papers as you or they may reasonably
request in connection therewith or in connection with your special counsel's
closing opinion, all in form and substance reasonably satisfactory to you and
your special counsel.
4. PAYMENTS
4.1 PAYMENT OF NOTES AT MATURITY.
(a) SERIES A NOTES. The entire principal amount of the Series A
Notes, together with accrued and unpaid interest thereon and all other
amounts then due hereunder, shall be due and payable on January 31, 2000.
(b) SERIES B NOTES. The entire principal amount of the Series B
Notes, together with accrued and unpaid interest thereon and all other
amounts then due hereunder, shall be due and payable on January 31, 2002.
4.2 OPTIONAL PREPAYMENTS.
(a) OPTIONAL PREPAYMENTS. The Company may, at any time and from
time to time, prepay the principal amount of the Notes in part, in integral
multiples of One Million Dollars ($1,000,000), or in whole, in each case
together with:
(i) an amount equal to the Make-Whole Amount on such date in
respect of the principal amount of the Notes being so prepaid; and
(ii) interest on such principal amount then being prepaid
accrued to the prepayment date.
(b) NOTICE OF OPTIONAL PREPAYMENT. The Company will give notice of
any optional prepayment of the Notes to each holder of Notes not less than
thirty (30) days or more than sixty (60) days before the date fixed for
prepayment, specifying:
(i) such date;
(ii) that such prepayment is to be made pursuant to Section 4.2
of this Agreement;
(iii) the principal amount of each Note to be prepaid on such
date;
(iv) the interest to be paid on each such Note, accrued to the
date fixed for payment; and
(v) the calculation of an estimated Make-Whole Amount, if any
(calculated as if the date of such notice was the date of prepayment),
due in connection with such prepayment, accompanied by a copy of any
applicable documentation used in connection with determining the
Make-Whole Discount Rate in respect of such prepayment.
Notice of prepayment having been so given, the aggregate principal
amount of the Notes to be prepaid specified in such notice, together
with the Make-Whole Amount as of the specified prepayment date with
respect thereto, if any, and accrued interest thereon shall become due
and payable
U.S. RESTAURANT PROPERTIES OPERATING L.P. 18 NOTE PURCHASE AGREEMENT
on the specified prepayment date. Contemporaneously with such prepayment
the Company shall deliver to each holder of Notes a certificate of a Senior
Financial Officer specifying the calculation of such Make-Whole Amount as
of the specified prepayment date, accompanied by a copy of any applicable
documentation used in connection with determining the Make-Whole Discount
Rate in respect of such prepayment.
4.3 OFFER TO PREPAY UPON CHANGE IN CONTROL.
(a) NOTICE AND OFFER. In the event of either
(i) a Change in Control, or
(ii) the obtaining of knowledge of a Control Event by any
officer of any of the Managing General Partners, any trustee or
manager of Business Trust I or Business Trust II or by any officer,
general partner or trustee of any other Subsidiary (including, without
limitation, via the receipt of notice of a Control Event from any
holder of Notes),
then the Company will, within three (3) Business Days of (x) such Change
in Control or (y) the obtaining of knowledge of such Control Event, as
the case may be, give written notice of such Change in Control or Control
Event to each holder of Notes. In the event of a Change in Control, such
written notice shall contain, and such written notice shall constitute, an
irrevocable offer to prepay all, but not less than all, of the Notes of
each Series held by such holder on a date specified in such notice (the
"PROPOSED CONTROL PREPAYMENT DATE") that is contemporaneous with the date
of such Change in Control.
(b) CONDITION TO COMPANY ACTION. The Company will not take any
action that consummates or finalizes a Change in Control unless
(i) at least thirty (30) days prior to such action it shall
have given to each holder of Notes written notice containing and
constituting an offer to prepay Notes as described in subparagraph (a)
of this Section 4.3, accompanied by the certificate described in
subparagraph (d) of this Section 4.3, and
(ii) contemporaneously with such action, it prepays all Notes
required to be prepaid in accordance with this Section 4.3.
(c) ACCEPTANCE AND PAYMENT; REJECTION. To accept such offered
prepayment, a holder of Notes shall cause a notice of such acceptance
(which notice of acceptance may be in respect of one or more Series of
Notes held by such holder, but which notice need not treat Notes of all
Series held by such holder in the same manner) to be delivered to the
Company not later than fourteen (14) days after the date of receipt by
such holder of the written offer of such prepayment. If so accepted,
such offered prepayment shall be due and payable on the Proposed Control
Prepayment Date. Such offered prepayment shall be made at one hundred
percent (100%) of the principal amount of such Notes, together with
interest on the Notes then being prepaid accrued to the Proposed Control
Prepayment Date. A failure to respond to any such written offer of
payment as provided in this Section 4.3(c) shall be deemed to constitute
a rejection of such offer.
(d) OFFICER'S CERTIFICATE. Each offer to prepay the Notes
pursuant to this Section 4.3 will be accompanied by an officer's
certificate, executed by a Senior Officer of the Company and dated the
date of such offer, specifying:
(i) the Proposed Control Prepayment Date;
U.S. RESTAURANT PROPERTIES OPERATING L.P. 19 NOTE PURCHASE AGREEMENT
(ii) the principal amount of each Note offered to be prepaid;
(iii) the interest to be paid on each such Note, accrued to the
Proposed Control Prepayment Date;
(iv) that the conditions of this Section 4.3 have been
fulfilled; and
(v) in reasonable detail, the nature and date or proposed date
of the Change in Control and a description of the Person or Persons
that would, after giving effect to the Change in Control, hold the
Voting Units of each of the Parent, the Company and the Managing
General Partners of the Company and the Parent (and the percentage
held by such Person or Persons of the total amount of such Voting
Units).
(e) NOTICE CONCERNING STATUS OF HOLDERS OF NOTES. Promptly after
each Proposed Control Prepayment Date and the making of all prepayments
contemplated on such Proposed Control Prepayment Date under this Section
4.3 (and, in any event, within thirty (30) days thereafter), the Company
shall deliver to each remaining holder of Notes a certificate signed by
a Senior Officer of the Company containing a list of the then current
holders of Notes (together with their addresses) and setting forth as
to each such holder the outstanding principal amount of Notes of each
Series held by each such holder at such time.
4.4 OFFER TO PREPAY UPON INVESTMENT GRADE RATING.
(a) NOTICE AND OFFER. At any time after the Closing Date, so long
as at such time
(i) the Company shall have obtained an unsecured debt rating of
"Baa3" or higher from Moodys Investor Services, Inc., "BBB-" or higher
from Standard & Poors or "BBB-" or higher from Duff & Xxxxxx Credit
Rating Co. and
(ii) the Banks shall have instructed the Collateral Agent in
writing to release, on behalf of the Banks, all Collateral,
then the Company shall be permitted, at its option, to send each holder of
Notes (so long as such notice is given to all holders of Notes then
outstanding) a written notice (the "INVESTMENT GRADE NOTICE") which shall
constitute, an irrevocable offer to prepay all, but not less than all, of
the Notes of each Series then outstanding held by such holder on a date
specified in such notice (the "INVESTMENT GRADE PREPAYMENT DATE") that is
at least thirty (30) days but not later than sixty (60) days after receipt
of the Investment Grade Notice.
(b) ACCEPTANCE AND PAYMENT; REJECTION. To accept such offered
prepayment pursuant to the Investment Grade Notice, a holder of Notes shall
cause a notice of such acceptance (which notice of acceptance must be in
respect of all Notes held by such holder) to be delivered to the Company
not later than fourteen (14) days after the date of receipt by such holder
of the Investment Grade Notice. If so accepted, such offered prepayment
shall be due and payable on the Investment Grade Prepayment Date. Such
offered prepayment shall be made at one hundred percent (100%) of the
principal amount of such Notes, together with interest on the Notes then
being prepaid accrued to the Investment Grade Prepayment Date. A failure
to respond to any such written offer of payment as provided in this
Section 4.4(b) shall be deemed to constitute a rejection of such offer.
A rejection (including any deemed rejection) of such offer shall require
the holders rejecting such offer to comply with the provisions of
Section 4.4(d) below.
U.S. RESTAURANT PROPERTIES OPERATING L.P. 20 NOTE PURCHASE AGREEMENT
(c) NOTICE CONCERNING STATUS OF HOLDERS OF NOTES. Promptly after
the Investment Grade Prepayment Date and the making of all prepayments
contemplated on such Investment Grade Prepayment Date under this Section
4.4 (and, in any event, within thirty (30) days thereafter), the Company
shall deliver to each remaining holder of Notes a written notice (the
"COLLATERAL RELEASE NOTICE") signed by a Senior Officer of the Company
containing a list of the then current holders of Notes (together with
their addresses) and setting forth as to each such holder the outstanding
principal amount of Notes of each Series held by each such holder at such
time. The Collateral Release Notice must also state that pursuant to the
provisions of Section 4.4(d) all or a portion of the Collateral securing
such holder's Notes is subject to being released in accordance with such
Section based on the action (or lack of action) of the Required Holders.
(d) RELEASE OF COLLATERAL.
(i) In the event that any holder of Notes rejects (or is
deemed to have rejected) the offer of prepayment under the Investment
Grade Notice, such holder shall, at the direction of the Required
Holders (determined after taking into consideration the prepayment of
the Notes on the Investment Grade Prepayment Date) given within sixty
(60) days of the receipt by all such holders of the Collateral Release
Notice, instruct the Collateral Agent to release all of the Collateral
in which case the Notes and the Unconditional Guaranty shall become
unsecured on the date (the "COLLATERAL RELEASE DATE") which is the
sixty-first day after the date of receipt by all of such holders of
the Collateral Release Notice.
(ii) If the Required Holders fail to elect to give the
instruction contemplated by Section 4.4(d)(i) above, all holders of
Notes shall be deemed to have directed the Collateral Agent to take
any and all necessary actions to limit the Collateral securing the
Notes to a specified pool of Properties to be identified by the
Company. Such pool of Properties shall at all times have an aggregate
net book value equal to or greater than twice the amount of the
outstanding principal amount of the Notes. Upon such direction the
Company shall identify the Properties to make up such pool (and if at
such time, or from time to time thereafter, any of such Properties are
not part of the Collateral, grant one or more Mortgages and
Assignments of Rents to the Collateral Agent in such Properties in
accordance with Section 6.11(b)) and the holders of Notes shall send
written instructions to the Collateral Agent to release the
Properties, if any, which are at such time part of the Collateral but
not required to be included in such pool.
(e) INVESTMENT GRADE NOTICE. Each Investment Grade Notice to each
holder of Notes shall be executed by a Senior Officer of the Company and
shall specify, in addition to the offer to prepay the Notes pursuant to
this Section:
(i) the Investment Grade Prepayment Date;
(ii) the principal amount of each Note of such holder;
(iii) the interest to be paid on each such Note, accrued to the
Investment Grade Prepayment Date;
(iv) that the conditions of this Section 4.4 have been
fulfilled; and
(v) that if such holder does not elect to accept the offer of
prepayment contained in such Investment Grade Notice, all or a portion
of the Collateral securing such holder's Notes is subject to
U.S. RESTAURANT PROPERTIES OPERATING L.P. 21 NOTE PURCHASE AGREEMENT
being released in accordance with the provisions of Section 4.4(d)
based on the action (or lack of action) of the Required Holders.
The Investment Grade Notice shall be accompanied by written evidence,
satisfactory to the Required Holders, that the conditions in clause (i)
and clause (ii) of Section 4.4(a) have been satisfied.
4.5 PRO RATA PAYMENTS.
If at the time any prepayment under Section 4.2 hereof is due there is
more than one Note outstanding, the aggregate principal amount of each such
prepayment of the Notes shall be allocated among the Notes at the time
outstanding (without distinguishing among the different Series) in
proportion, as nearly as practicable, to the respective unpaid principal
amounts of the Notes then outstanding, with adjustments, to the extent
practicable, to equalize for any prior prepayments not in such proportion.
4.6 NOTATION OF NOTES ON PREPAYMENT.
Upon any partial prepayment of a Note, such Note may, at the option of the
holder thereof, be (but shall not be required to be):
(a) surrendered to the Company pursuant to Section 5.2 hereof in
exchange for a new Note in a principal amount equal to the principal amount
remaining unpaid on the surrendered Note;
(b) made available to the Company for notation thereon of the
portion of the principal so prepaid; or
(c) marked by such holder with a notation thereon of the portion of
the principal so prepaid.
In case the entire principal amount of any Note is paid, such Note shall be
surrendered to the Company for cancellation and shall not be reissued, and no
Note shall be issued in lieu of the paid principal amount of any Note.
4.7 NO OTHER OPTIONAL PREPAYMENTS.
Except as provided in this Section 4, neither the Parent, the Company
nor any other Subsidiary or Affiliate may make any optional prepayment
(whether directly or indirectly by purchase or other acquisition) in respect
of the Notes.
4.8 INTEREST PAYMENTS.
Interest shall accrue on the unpaid principal balance of the Notes on
the basis of a 360-day year of twelve 30-day months:
(a) SERIES A NOTES. With respect to the Series A Notes, at the
rate of 8.06% PER ANNUM and shall be payable to the holders of the Series
A Notes, in arrears, quarterly on the last day of April, July, October
and January in each year, commencing on April 30, 1997, until the
principal amount of the Series A Notes in respect of which such interest
shall have accrued shall become due and payable, and interest shall
accrue on any overdue principal (including any overdue prepayment of
principal), Make-Whole Amount, if any, and (to the extent permitted by
applicable law) on any overdue installment of interest at a rate equal to
the LESSER of (i) the highest rate allowed by applicable law, and (ii)
10.06% PER ANNUM, and
U.S. RESTAURANT PROPERTIES OPERATING L.P. 22 NOTE PURCHASE AGREEMENT
(b) SERIES B NOTES. With respect to the Series B Notes, at the
rate of 8.30% PER ANNUM and shall be payable to the holders of the Series
B Notes, in arrears, quarterly on the last day of April, July, October
and January in each year, commencing on April 30, 1997, until the
principal amount of the Series B Notes in respect of which such interest
shall have accrued shall become due and payable, and interest shall
accrue on any overdue principal (including any overdue prepayment of
principal), Make-Whole Amount, if any, and (to the extent permitted by
applicable law) on any overdue installment of interest at a rate equal to
the LESSER of (i) the highest rate allowed by applicable law, and (ii)
10.30% PER ANNUM.
4.9 PAYMENTS ON NOTES.
(a) MANNER OF PAYMENT. The Company shall pay all amounts payable
with respect to each Note (without any presentment of such Notes and
without any notation of such payment being made thereon) by crediting, by
federal funds bank wire transfer, the account of the holder thereof in
any bank in the United States of America as may be designated in writing
by such holder, or in such other manner as may be reasonably directed or
to such other address in the United States of America as may be
reasonably designated in writing by such holder. Annex 1 hereto shall be
deemed to constitute notice, direction or designation (as appropriate) to
the Company with respect to payments as aforesaid. In the absence of
such written direction, all amounts payable with respect to each Note
shall be paid by check mailed and addressed to the registered holder of
such Note at the address shown in the register maintained by the Company
pursuant to Section 5.1 hereof.
(b) PAYMENTS DUE ON HOLIDAYS. If any payment due on, or with
respect to, any Note shall fall due on a day other than a Business Day,
then such payment shall be made on the first Business Day following the
day on which such payment shall have so fallen due, PROVIDED that if all
or any portion of such payment shall consist of a payment of interest,
for purposes of calculating such interest, such payment shall be deemed
to have been originally due on such first following Business Day, such
interest shall accrue and be payable to (but not including) the actual
date of payment and the amount of the next succeeding interest payment
shall be adjusted accordingly.
(c) PAYMENTS, WHEN RECEIVED. Any payment to be made to the holders
of Notes hereunder or under the Notes shall be deemed to have been made
on the Business Day such payment actually becomes available to such
holder at such holder's bank prior to 12:00 noon (local time of such
bank).
5. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES; LIMITATION ON TRANSFER
5.1 REGISTRATION OF NOTES.
The Company will cause to be kept at its office maintained pursuant to
Section 6.3 a register for the registration and transfer of Notes. The name
and address of each holder of one or more Notes, the outstanding principal
amount and Series of each such Note, each transfer thereof and the name and
address of each transferee of one or more Notes shall be registered in such
register. The Person in whose name any Note shall be registered shall be
deemed and treated as the owner and holder thereof for all purposes hereof
and the Company shall not be affected by any notice or knowledge to the
contrary.
5.2 EXCHANGE OF NOTES.
(a) Upon surrender of any Note at the office of the Company
maintained pursuant to Section 6.3 duly endorsed or accompanied by a
written instrument of transfer duly executed by the registered holder
of such Note or such holder's attorney duly authorized in writing, the
U.S. RESTAURANT PROPERTIES OPERATING L.P. 23 NOTE PURCHASE AGREEMENT
Company will execute and deliver, at the Company's expense (except as
provided below), new Notes in exchange therefor, of the same Series as
such surrendered Note, in denominations of at least One Hundred Thousand
Dollars ($100,000) (except as may be necessary to reflect any principal
amount not evenly divisible by One Hundred Thousand Dollars ($100,000)),
in an aggregate principal amount equal to the unpaid principal amount of
the surrendered Note. Each such new Note shall be payable to such Person
as such holder may request and shall be substantially in the form of
Exhibit A1 or Exhibit A2, as the case may be. Each such new Note shall be
dated and bear interest from the date to which interest shall have been
paid on the surrendered Note or dated the date of the surrendered Note if
no interest shall have been paid thereon. The Company may require
payment of a sum sufficient to cover any stamp tax or governmental charge
imposed in respect of any such transfer of Notes.
(b) The Company will pay the cost of delivering to or from such
holder's home office or custodian bank from or to the Company, insured to
the reasonable satisfaction of such holder, the surrendered Note and any
Note issued in substitution or replacement for the surrendered Note.
5.3 REPLACEMENT OF NOTES.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the ownership of and the loss, theft, destruction or mutilation of any Note
(which evidence shall be, in the case of an Institutional Investor, notice
from such Institutional Investor of such ownership (or of ownership by such
Institutional Investor's nominee) of such loss, theft, destruction or
mutilation), and
(a) in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to the Company (PROVIDED that if the holder of
such Note is an Institutional Investor or a nominee of such Institutional
Investor, such Institutional Investor's own unsecured agreement of
indemnity shall be deemed to be satisfactory for such purpose), or
(b) in the case of mutilation, upon surrender and cancellation
thereof,
the Company at its own expense will execute and deliver, in lieu thereof, a
new Note of the same Series, dated and bearing interest from the date to
which interest shall have been paid on such lost, stolen, destroyed or
mutilated Note or dated the date of such lost, stolen, destroyed or mutilated
Note if no interest shall have been paid thereon.
5.4 ISSUANCE TAXES.
The Company will pay all taxes (other than taxes on the net income of
any holder of Notes), if any, due in connection with and as the result of the
initial issuance and sale of the Notes and in connection with any
modification of this Agreement, the Notes or any other Financing Document and
shall save each holder of Notes harmless without limitation as to time
against any and all liabilities with respect to all such taxes. The
obligations of the Company under this Section 5.4 shall survive the payment
or prepayment of the Notes and the termination of this Agreement and the
other Financing Documents.
5.5 EXECUTION AND DELIVERY OF NOTES BY GUARANTORS.
Each Guarantor shall, upon the issuance of any new Notes by the Company
pursuant to Section 5.2 or Section 5.3, cause the confirmation of the
Unconditional Guaranty provided therein to be duly executed and delivered in
the form provided on Exhibit A1 or Exhibit A2, as applicable.
U.S. RESTAURANT PROPERTIES OPERATING L.P. 24 NOTE PURCHASE AGREEMENT
6. COVENANTS
The Company and the Guarantors covenant that on and after the Closing
Date and so long as any of the Notes shall be outstanding:
6.1 PAYMENT OF TAXES AND CLAIMS.
Each of the Company and the Guarantors will, and will cause each other
Subsidiary to, pay before they become delinquent:
(a) all taxes, assessments and governmental charges or levies
imposed upon it or its respective Property; and
(b) all claims or demands of materialmen, mechanics, carriers,
warehousemen, vendors, landlords and other like Persons that, if unpaid,
might result in the creation of a statutory, regulatory or common law Lien
upon its Property,
PROVIDED, that items of the foregoing description need not be paid so long as
such items are being actively contested in good faith and by appropriate
proceedings, adequate book reserves in accordance with GAAP have been
established and maintained with respect thereto, and such items, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
6.2 MAINTENANCE OF PROPERTIES; EXISTENCE; ETC.
Each of the Company and the Guarantors will, and will cause each other
Subsidiary to:
(a) PROPERTY -- maintain its Property in good condition, ordinary
wear and tear and obsolescence excepted, and make all necessary renewals,
replacements, additions, betterments and improvements thereto, PROVIDED
that this Section 6.2(a) shall not prevent the Company, any Guarantor or
any other Subsidiary from discontinuing the operation and the maintenance
of any of its Properties if such discontinuance is desirable in the
conduct of its business and such discontinuance could not reasonably be
expected to have a Material Adverse Effect;
(b) INSURANCE -- maintain or cause to be maintained, with
financially sound and reputable insurers,
(i) insurance with respect to its Property and business
against such casualties and contingencies, of such types and in such
amounts as is customary in the case of business entities of
established reputations engaged in the same or a similar business and
similarly situated, and
(ii) such other insurance as is required to be maintained on
its Property and business pursuant to section 6.2 of the Bank Credit
Agreement;
(c) FINANCIAL RECORDS -- keep accurate and complete books of records
and accounts in which accurate and complete entries shall be made of all
its business transactions and that will permit the provision of accurate
and complete financial statements in accordance with GAAP;
(d) EXISTENCE AND RIGHTS --
(i) (A) do or cause to be done all things necessary to
preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises, except
U.S. RESTAURANT PROPERTIES OPERATING L.P. 25 NOTE PURCHASE AGREEMENT
(I) where the failure to do so, individually or
in the aggregate, could not reasonably be expected to
have a Material Adverse Effect, and
(II) in connection with a Permitted REIT
Conversion;
and
(B) maintain each Subsidiary as a Subsidiary;
in each case except as permitted by Section 6.7 and Section
6.8(b);
and
(ii) maintain in full force and effect, comply with all of the
terms and provisions of, and renew or extend the term of all Leasehold
Property Leases and all Restaurant Operator Leases except where the
failure to so maintain, comply, renew or extend, individually or in
the aggregate for such failures, could not reasonably be expected to
have a Material Adverse Effect; and
(e) COMPLIANCE WITH LAW -- not be in violation of any law, ordinance
or governmental rule or regulation to which it is subject (including,
without limitation, any Environmental Protection Law) and not fail to
obtain any license, certificate, permit, franchise or other governmental
authorization necessary to the ownership of its Properties or to the
conduct of its business if such violations or failures to obtain,
individually or in the aggregate for such violations or failures, could
reasonably be expected to have a Material Adverse Effect.
6.3 PAYMENT OF NOTES AND MAINTENANCE OF OFFICE.
The Company will punctually pay, or cause to be paid, the principal of
and interest (and Make-Whole Amount, if any) on the Notes, as and when the
same shall become due according to the terms of this Agreement and of the
Notes, and will maintain an office at the address of the Company as provided
in Section 11.1 where notices, presentations and demands in respect of this
Agreement, the Notes or the other Financing Documents may be made upon it.
Such office will be maintained at such address until such time as the Company
shall notify the holders of the Notes of any change of location of such
office, which will in any event be located within the United States of
America.
6.4 FIXED CHARGES COVERAGE RATIO.
The Parent will not, at any time, permit the Fixed Charges Coverage
Ratio to be less than 2.00 to 1.
6.5 CONSOLIDATED PARTNERS' CAPITAL; DISTRIBUTIONS.
(a) CONSOLIDATED PARTNERS' CAPITAL. The Parent will not, at any
time, permit
(i) Consolidated Partners' Capital to be less than the SUM of
(A) $60,000,000, PLUS
(B) an aggregate amount equal to 100% of the Net
Proceeds of Partnership Interests of the Parent and the Net
Proceeds of Partnership Interests of the REIT Party (other than
equity comprising the purchase price for real Property which is
included in the Collateral) for the period commencing
U.S. RESTAURANT PROPERTIES OPERATING L.P. 26 NOTE PURCHASE AGREEMENT
on the Closing Date and ending on the date of determination
thereof, and
(ii) Combined GAAP Partners' Capital to be less than the amount
equal to
(A) the SUM of
(I) $100,000,000, PLUS
(II) an amount equal to 100% of the aggregate Net
Proceeds of Partnership Interests of the Parent, the
Company or any Affiliate (as defined in the Bank Credit
Agreement in effect on the Closing Date) of either of
them (other than equity comprising the purchase price for
real Property paid by such Persons which is included in
the Collateral) for the period commencing on the Closing
Date and ending on the date of determination thereof,
MINUS
(B) the amount of partners' capital returned to the
holders of partnership interests (or other equity interests) in
the Parent or the REIT Party after September 30, 1996.
(b) DISTRIBUTIONS. Neither the Parent nor any Subsidiary will make
any Distribution in any calendar year if:
(i) the amount of such Distribution, together with all other
Distributions made in such calendar year, would exceed an amount
equal to the SUM of
(A) Consolidated Net Earnings for the portion of such
calendar year ended as of the date of such proposed
Distribution, PLUS
(B) the aggregate amount (to the extent, and only to
the extent such aggregate amount was deducted in the computation
of such Consolidated Net Earnings) of
(I) the amount of depreciation and amortization
of the Parent, the Company and the other Subsidiaries,
PLUS
(II) amounts in reduction of investment in direct
financing leases of the Parent, the Company and the other
Subsidiaries, PLUS
(III) provision for write-downs and dispositions of
real estate of the Parent, the Company and the other
Subsidiaries; or
(ii) as of the time of such Distribution, or after giving
effect thereto, a Default or an Event of Default exists or would
exist.
Notwithstanding anything to the contrary contained in this Section 6.5(b),
the obligations set forth in this Section 6.5(b) shall remain full force
and effect only so long as the Bank Credit Agreement contains a provision
substantially similar to section 7.1 of the Bank Credit Agreement (as in
effect on the Closing Date) relating to Distributions.
6.6 MAINTENANCE OF CONSOLIDATED FUNDED DEBT.
U.S. RESTAURANT PROPERTIES OPERATING L.P. 27 NOTE PURCHASE AGREEMENT
The Parent will not at any time permit Consolidated Funded Debt to
exceed 55% of Consolidated Total Capitalization determined at such time.
6.7 MERGER, CONSOLIDATION, ETC.
The Parent will not, and will not permit the Company or any other
Subsidiary to, consolidate with or merge with any other Person or convey,
transfer or lease substantially all of its assets in a single transaction or
series of transactions to any Person (except that (x) the Company may
consolidate with or merge with the Parent in connection with a Permitted REIT
Conversion and (y) a Subsidiary (other than the Company) may (I) consolidate
with or merge with, or convey, transfer or lease substantially all of its
assets in a single transaction or series of transactions to, the Parent or a
Wholly-Owned Subsidiary and (II) convey, transfer or lease all of its assets
in compliance with the provisions of Section 6.8), PROVIDED that, subject in
all cases to the provisions set forth in Section 4.3, the foregoing
restriction does not apply to the consolidation or merger of the Parent with,
or the conveyance, transfer or lease of substantially all of the assets of
the Parent in a single transaction or series of transactions to, any Person
so long as:
(a) the successor entity formed by such consolidation or the
survivor of such merger or the Person that acquires by conveyance,
transfer or lease substantially all of the assets of the Parent as an
entirety, as the case may be (the "SUCCESSOR ENTITY"), shall be a solvent
entity organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia;
(b) if the Parent is not the Successor Entity, such entity
shall have executed and delivered to each holder of Notes its assumption
of the due and punctual performance and observance of each covenant and
condition of this Agreement, the Notes and the other Financing Documents
(pursuant to such agreements and instruments as shall be reasonably
satisfactory to the Required Holders), and the Parent shall have caused
to be delivered to each holder of Notes an opinion of nationally
recognized independent counsel, or other independent counsel reasonably
satisfactory to the Required Holders, to the effect that all agreements
or instruments effecting such assumption are enforceable in accordance
with their terms and comply with the terms hereof; and
(c) immediately after giving effect to such transaction no
Default or Event of Default would exist.
No such conveyance, transfer or lease of substantially all of the assets of
the Parent shall have the effect of releasing the Parent or any Successor
Entity from its liability under this Agreement, the Notes or the other
Financing Documents.
6.8 SALE OF ASSETS, ETC.
(a) SALE OF ASSETS. Except as permitted under Section 6.7, the
Parent and the Company will not, nor will the Parent or the Company permit
any other Subsidiary to, make any Asset Disposition unless:
(i) in the good faith opinion of the Parent or the Company,
as the case may be, the Asset Disposition is in exchange for
consideration having a Fair Market Value at least equal to that of
the Property exchanged and is in the best interest of the Parent,
the Company or such other Subsidiary;
(ii) immediately after giving effect to the Asset Disposition,
no Default or Event of Default would exist; and
(iii) immediately after giving effect to the Asset Disposition,
the Disposition Value of all Property that was the subject of any
Asset Disposition occurring on or after the Closing
U.S. RESTAURANT PROPERTIES OPERATING L.P. 28 NOTE PURCHASE AGREEMENT
Date would not exceed 25% of Consolidated Total Assets as of the end
of the then most recently ended fiscal quarter of the Parent.
If the Net Proceeds Amount for any Transfer is applied to a Debt
Prepayment Application or a Property Reinvestment Application within 365
days after such Transfer, then such Transfer, only for the purpose of
determining compliance with subsection (iii) of this Section 6.8(a) as of
any date, shall be deemed not to be an Asset Disposition.
(b) DISPOSAL OF OWNERSHIP OF A SUBSIDIARY. The Parent and the
Company will not, and will not permit any other Subsidiary to, sell or
otherwise dispose of any shares of Subsidiary Stock, nor will the Parent
or the Company permit any such Subsidiary to issue, sell or otherwise
dispose of any shares of its own Subsidiary Stock, PROVIDED that the
foregoing restrictions do not apply to:
(i) the issue of directors' qualifying shares by any such
Subsidiary;
(ii) any such Transfer of Subsidiary Stock constituting a
Transfer described in clause (a) of the definition of "Asset
Disposition"; and
(iii) the Transfer of all of the Subsidiary Stock of a
Subsidiary owned by the Parent and the other Subsidiaries if:
(A) such Transfer satisfies the requirements of Section
6.8(a)(iii),
(B) in connection with such Transfer the entire
Investment (whether represented by stock, Debt, claims or
otherwise) of the Parent and the other Subsidiaries in such
Subsidiary is sold, transferred or otherwise disposed of to a
Person other than (x) the Company, (y) another Subsidiary not
being simultaneously disposed of, or (z) an Affiliate, and
(C) the Subsidiary being disposed of has no continuing
Investment in any other Subsidiary not being simultaneously
disposed of or in the Parent.
(c) OWNERSHIP OF THE COMPANY. Notwithstanding the provisions of
Section 6.8(a) or Section 6.8(b), or any of the other terms or provisions
hereof, at all times prior to a Permitted REIT Conversion,
(i) the Parent shall own and control at least 99.01% of the
outstanding limited partnership interests of the Company, and
(ii) U.S. Restaurant Properties, Inc. shall own and control all
of the limited partnership interests of the Company not owned by the
Parent.
6.9 LIENS.
(a) NEGATIVE PLEDGE. The Parent and the Company will not, and
will not permit any other Subsidiary to, at any time after the
Collateral Release Date, directly or indirectly create, incur, assume or
permit to exist (upon the happening of a contingency or otherwise) any
Lien on or with respect to any Property (including, without limitation,
any document or instrument in respect of goods or accounts receivable)
of the Parent, the Company or any such other Subsidiary, whether now
owned or held or hereafter acquired, or any income or profits therefrom
or assign or otherwise convey any right to receive income or profits
(unless it makes, or causes to be made, effective provision whereby the
Notes will be equally and ratably secured with any and all other
obligations thereby
U.S. RESTAURANT PROPERTIES OPERATING L.P. 29 NOTE PURCHASE AGREEMENT
secured, such security to be pursuant to an agreement reasonably
satisfactory to the Required Holders and, in any such case, the Notes
shall have the benefit, to the fullest extent that, and with such
priority as, the holders of the Notes may be entitled under applicable
law, of an equitable Lien on such property), except:
(i) Liens for taxes, assessments or other governmental charges
which are not yet due and payable or the payment of which is not at
the time required by Section 6.1;
(ii) Liens
(A) arising from judicial attachments and judgments,
(B) securing appeal bonds or supersedeas bonds, and
(C) arising in connection with court proceedings
(including, without limitation, surety bonds and letters of
credit or any other instrument serving a similar purpose),
PROVIDED that (1) the execution or other enforcement of such Liens is
effectively stayed, (2) the claims secured thereby are being actively
contested in good faith and by appropriate proceedings, (3) adequate
book reserves shall have been established and maintained and shall
exist with respect thereto, and (4) the aggregate amount so secured is
a Permitted Other Secured Obligation;
(iii) Liens incidental to the conduct of the business of the
Parent, the Company and the other Subsidiaries or to the ownership of
the Property and assets of such Person, including pledges or deposits
in connection with workers' compensation and social security taxes,
assessments and charges, PROVIDED that such Liens
(A) were not incurred in connection with the borrowing
of money or the obtaining of advances or credit, and
(B) do not, in the aggregate for all such Liens,
otherwise materially detract from the value of such Property or
assets or materially impair the use thereof in the operation of
the business of such Person;
(iv) leases or subleases granted to others, easements,
rights-of-way, restrictions and other similar charges or
encumbrances, in each case incidental to, and not interfering with,
the use of the affected Property in the ordinary conduct of the
business of the Parent, the Company or any of the other Subsidiaries,
PROVIDED that such Liens do not, in the aggregate for all such Liens,
materially detract from the value of such Property;
(v) Liens existing on the Closing Date and fully described in
PART 6.9(a) OF ANNEX 3;
(vi) Liens on property or assets of the Parent, the Company or
any other Subsidiary securing Debt owing to the Parent, the Company or
to another Wholly-Owned Subsidiary;
(vii) Liens securing renewals, extensions (as to time) and
refinancings of Debt secured by the Liens described in clause (v) of
this Section 6.9(a), PROVIDED that
(A) the amount of Debt secured by each such Lien is not
increased in excess of the amount of such Debt outstanding on
the date of such renewal, extension or refinancing,
U.S. RESTAURANT PROPERTIES OPERATING L.P. 30 NOTE PURCHASE AGREEMENT
(B) none of such Liens is extended to encumber or
otherwise relate to or cover any additional Property of the
Parent, the Company or any other Subsidiary, and
(C) immediately prior to, and immediately after the
consummation of such renewal, extension or refinancing, and
after giving effect thereto, no Default or Event of Default
exists or would exist;
(viii) any Lien created to secure all or any part of the
purchase price, or to secure Debt incurred or assumed to pay all or
any part of the purchase price or cost of construction, of Property
(or any improvement thereon) acquired or constructed by the Parent,
the Company or any other Subsidiary after the Closing Date, PROVIDED
that
(A) any such Lien shall extend solely to the item or
items of such Property (or improvement thereon) so acquired or
constructed and, if required by the terms of the instrument
originally creating such Lien, other Property (or improvement
thereon) which is an improvement to or is acquired for specific
use in connection with such acquired or constructed Property (or
improvement thereon) or which is real Property being improved
by such acquired or constructed Property (or improvement
thereon),
(B) the principal amount of the Debt secured by any
such Lien shall at no time exceed an amount equal to 100% of the
Fair Market Value (as determined in good faith by the board of
directors of the Managing General Partner of the Company or
other managing board of the Company) of such Property (or
improvement thereon) at the time of such acquisition or
construction, and
(C) any such Lien shall be created contemporaneously
with, or within 180 days after, the acquisition or construction
of such Property; and
(ix) any Lien renewing, extending or refunding any Lien
permitted by the foregoing clause (viii), PROVIDED that (A) the
principal amount of Debt secured by such Lien immediately prior to
such extension, renewal or refunding is not increased, (B) such Lien
is not extended to any other Property, and (C) immediately prior to
and after such extension, renewal or refunding no Default or Event of
Default would exist;
(x) any Lien existing on Property of a Person immediately
prior to its being consolidated with or merged into the Parent, the
Company or another Subsidiary or its becoming a Subsidiary, or any
Lien existing on any Property acquired by the Parent, the Company or
any other Subsidiary at the time such Property is so acquired (whether
or not the Debt secured thereby shall have been assumed), PROVIDED
that
(A) no such Lien shall have been created or assumed in
contemplation of such consolidation or merger or such Person's
becoming a Subsidiary or such acquisition of Property,
(B) each such Lien shall extend solely to the item or
items of Property so acquired and, if required by the terms of
the instrument originally creating such Lien, other Property
which is an improvement to or is acquired for specific use in
connection with such acquired Property, and
U.S. RESTAURANT PROPERTIES OPERATING L.P. 31 NOTE PURCHASE AGREEMENT
(C) the principal amount of the Debt secured by any
such Lien shall at no time exceed an amount equal to 100% of the
Fair Market Value (as determined in good faith by the board of
directors of the Managing General Partner of the Company or
other managing board of the Company) of such Property at the
time of such acquisition;
(xi) other Liens on Property of the Parent, the Company or the
other Subsidiaries not otherwise permitted pursuant to clause (i)
through clause (x), inclusive, of this Section 6.9(a), PROVIDED that
(A) the Debt or other obligation secured by such Lien
is a Permitted Other Secured Obligation; and
(B) prior to, and after giving effect to the
incurrence, assumption or creation of any such Lien, and to any
concurrent application of the proceeds of any Debt or other
obligation secured thereby, no Default or Event of Default would
exist.
(b) FINANCING STATEMENTS. The Parent and the Company will not, and
will not permit any other Subsidiary to, sign or file a financing
statement under the Uniform Commercial Code of any jurisdiction that
names the Parent, the Company or any other Subsidiary as debtor, or sign
any security agreement authorizing any secured party thereunder to file
any such financing statement, except, in any such case, a financing
statement filed or to be filed to perfect or protect a security interest
that the Parent, the Company or any such other Subsidiary is entitled to
create, assume or incur, or permit to exist, under the foregoing
provisions of this Section 6.9 or to evidence solely for informational
purposes a lessor's interest in Property leased to the Parent, the
Company or any such other Subsidiary.
(c) DEEMED INCURRENCE OF LIENS. For the purposes of this Section
6.9, any Person becoming a Subsidiary after the Collateral Release Date
shall be deemed to have incurred all of its then outstanding Liens at the
time it becomes a Subsidiary, and any Person extending, renewing or
refunding any Debt secured by any Lien shall be deemed to have incurred
such Lien at the time of such extension, renewal or refunding.
6.10 UNENCUMBERED ASSET RATIO.
The Parent will not, at any time after the Collateral Release Date,
permit the Unencumbered Asset Ratio to be less than 1.50 to 1.
6.11 ADDITIONAL SECURITY.
(a) ADDITIONAL SUBSIDIARIES. The Parent and the Company will, not
later than ten (10) Business Days after any Person becomes a Subsidiary,
cause such Person to
(i) if such Person is required by the Bank Credit Agreement
to deliver the Banks (or the Bank Agent, for the benefit of the Banks)
a Guaranty of the Debt evidenced by the Bank Credit Agreement, but in
any event if such Person is an Affiliate which the Company elects to
be the REIT Party after complying with the provisions of this Section
6.11, execute and deliver to each holder of Notes manually signed
originals of a guaranty agreement containing terms substantially
identical to the terms of the Unconditional Guaranty, and
(ii) if the Collateral Release Date shall not have occurred,
U.S. RESTAURANT PROPERTIES OPERATING L.P. 32 NOTE PURCHASE AGREEMENT
(A) manually signed originals of a joinder agreement
providing that such Person shall become a party to the
Intercreditor/Collateral Agency Agreement,
(B) copies of manually signed originals of Mortgages
and Assignment of Rents creating first priority Liens on all
real Properties and related leases and rents of such Person in
favor of the Collateral Agent, and
(C) copies of manually signed originals of any one or
more ALTA (1970-B) Mortgage Loan Policies of Title Insurance
issued by a financially sound and reputable title insurance
company with respect to each of the interests in real Property
covered by such Mortgages and Assignments of Rents.
The foregoing items shall be accompanied by (i) a written notice, signed
by a Senior Officer of the Company, making reference to this Section of
this Agreement, stating that such Person shall have become a Subsidiary
and specifying the manner in which such Person shall have become a
Subsidiary, the jurisdiction of organization of such Person and the
percentage of its equity interests (and the nature of such equity
interests) owned by the Parent, the Company and the other Subsidiaries,
(ii) copies of the corporate charter and bylaws, limited partnership
agreement or other constitutive documents of such Person and resolutions
of the board of directors of such Person or its managing general partner
or other Person having managerial power with respect to such Person
authorizing its execution and delivery of the foregoing agreements and
the transactions contemplated thereby (in each case, certified as correct
and complete copies by the secretary or an assistant secretary or similar
officer of such Person) and (iii) a legal opinion, satisfactory in form,
scope and substance to the Required Holders, of independent counsel to
the effect (A) that the Financing Documents to which such Person is then
becoming a party are enforceable in accordance with their terms and (B)
if the Collateral Release Date shall not yet have occurred, that the
Liens against the Property of such Person shall have been created and
perfected in accordance with the requirements of the Security Documents.
(b) ADDITIONAL PROPERTIES. If the Collateral Release Date shall
have not occurred, the Parent and the Company will, not later than ten
(10) Business Days after the Parent, the Company or any other Subsidiary
acquires any interest in real Property (other than real Property located
in the State of Florida) not owned by such Person on the Closing Date
(such Property being referred to as "AFTER-ACQUIRED PROPERTY") execute
and deliver, or cause such Subsidiary to execute and deliver to each
holder of Notes and the Collateral Agent,
(i) manually signed originals of Mortgages and Assignments of
Rents creating first priority Liens on all such After-Acquired
Property and related leases and rents of such Person in favor of the
Collateral Agent, and
(ii) one or more ALTA (1970-B) Mortgage Loan Policies of Title
Insurance issued by a financially sound and reputable title insurance
company with respect to each of the interests in each parcel or item
of After-Acquired Property covered by such Mortgages and Assignments
of Rents.
The Parent and the Company will, before the Parent, the Company, any
other Subsidiary shall acquire any interest in real Property not owned by
such Person on the Closing Date, obtain (and a Senior Officer of the
Company will review) a Phase I environmental assessment of such real
Property and, in each such case, if any potential environmental issue is
revealed by such Phase I environmental assessment that could reasonably
be expected to result in the real Property being in violation of
applicable law, a
U.S. RESTAURANT PROPERTIES OPERATING L.P. 33 NOTE PURCHASE AGREEMENT
satisfactory Phase II environmental assessment of such real Property
shall be obtained and reviewed by a Senior Officer of the Company or
the Parent, as the case may be, prior to consummating such acquisition.
(c) COLLATERAL RATIO. Notwithstanding the foregoing provisions of
this Section 6.11, if the Notes are to be secured as provided in Section
4.4(d)(ii), the Company shall comply with the provisions of this Section
6.11 to insure that the aggregate net book value of the Collateral at
all times is not less than 200% of the outstanding principal amount of
the Notes.
6.12 TRANSACTIONS WITH AFFILIATES.
The Parent and the Company will not, and will not permit any other
Subsidiary to, enter into any transaction, including, without limitation, the
purchase, sale, lease or exchange of Property or the rendering of any
service, with any Affiliate, except in the ordinary course of, and pursuant
to the reasonable requirements of, the business of the Parent, the Company or
such other Subsidiary and upon fair and reasonable terms no less favorable to
the Parent, the Company or such other Subsidiary than would obtain in a
comparable arm's-length transaction with a Person not an Affiliate.
6.13 RESTRICTIONS ON DIVIDENDS, ETC.
The Parent and the Company will not permit any Subsidiary to create or
otherwise cause or suffer to exist or become effective any restriction (other
than statutory, regulatory or common law restrictions) on the right or power
of any Subsidiary to
(a) pay dividends or make any other distributions on such
Subsidiary's capital stock, limited partnership interests or other equity
interests,
(b) pay any Debt owed by such Subsidiary to the Parent, the Company
or any other Subsidiary, or
(c) transfer any of its Property to the Parent, the Company or any
other Subsidiary.
6.14 NATURE OF BUSINESS.
The Parent and the Company will not, nor will they permit any other
Subsidiary to, engage in any business if, as a result thereof, the principal
businesses of the Parent, the Company and the other Subsidiaries, taken as a
whole, would be other than that of developing, acquiring, owning, and
managing income-producing properties which are leased on a triple net basis
to operators of fast food and casual dining restaurants, primarily Burger
King and other national and regional brands.
6.15 PENSION PLANS.
(a) COMPLIANCE. The Parent and the Company will, and will cause
each ERISA Affiliate to, at all times with respect to each Pension Plan
comply with all applicable provisions of ERISA and the IRC.
(b) PROHIBITED ACTIONS. The Parent and the Company will not, and
will not permit any ERISA Affiliate to:
(i) engage in any "prohibited transaction" (as such term is
defined in section 406 of ERISA or section 4975 of the IRC) or
"reportable event" (as such term is defined in section 4043 of ERISA)
that could result in the imposition of a tax or penalty;
U.S. RESTAURANT PROPERTIES OPERATING L.P. 34 NOTE PURCHASE AGREEMENT
(ii) incur with respect to any Pension Plan any "accumulated
funding deficiency" (as such term is defined in section 302 of ERISA),
whether or not waived;
(iii) terminate any Pension Plan in a manner that could result
in the imposition of a Lien on the Property of the Parent, the Company
or any other Subsidiary pursuant to section 4068 of ERISA or the
creation of any liability under section 4062 of ERISA;
(iv) fail to make any payment required by section 515 of ERISA;
(v) incur any withdrawal liability under Title IV of ERISA
with respect to any Multiemployer Plan or any liability as a result of
the termination of any Multiemployer Plan; or
(vi) incur any liability or suffer the existence of any Lien
on the Property of the Parent, the Company or any ERISA Affiliate, in
either case pursuant to Title I or Title IV of ERISA or pursuant to
the penalty or excise tax or security provisions of the IRC,
if the aggregate amount of the taxes, penalties, funding deficiencies,
interest, amounts secured by Liens, and other liabilities in respect of any
of the foregoing could reasonably be expected to have a Material Adverse
Effect.
(c) FOREIGN PENSION PLANS. The Parent and the Company will, and
will cause each other Subsidiary to, at all times, comply in all material
respects with all laws, regulations and orders applicable to the
establishment, operation, administration and maintenance of all Foreign
Pension Plans, and pay when due all premiums, contributions and any other
amounts required by applicable Foreign Pension Plan documents or applicable
laws, except where the failure to comply with such laws, regulations and
orders, and to make such payments, in the aggregate for all such failures,
could not reasonably be expected to have a Material Adverse Effect.
6.16 PRIVATE OFFERING.
The Parent and the Company will not, and will not permit any Person
acting on their behalf to, offer the Notes or any part thereof or any similar
Securities for issue or sale to, or solicit any offer to acquire any of the
same from, any Person so as to bring the issuance and sale of the Notes
within the provisions of section 5 of the Securities Act.
6.17 AMENDMENT OF PARTNERSHIP DOCUMENTS.
The Parent and the Company shall not modify, amend, supplement or
terminate, or agree to amend, modify, supplement or terminate, either
(a) the Parent Partnership Certificate or the Parent Partnership
Agreement, or
(b) the Company Partnership Certificate or the Company Partnership
Agreement,
except in connection with a Permitted REIT Conversion and as described in the
proxy statement delivered to the partners of the Parent in connection with
the Permitted REIT Conversion. Neither the Parent nor the Company shall
allow or permit any removal, addition or substitution of a general partner in
the Parent or the Company. Notwithstanding anything to the contrary
contained in this Section 6.17, the obligations set forth in this Section
6.17 shall remain in full force and effect only so long as the Bank Credit
Agreement contains a provision substantially similar to section 7.15 of the
Bank Credit Agreement (as in effect
U.S. RESTAURANT PROPERTIES OPERATING L.P. 35 NOTE PURCHASE AGREEMENT
on the Closing Date) relating to modifications to the partnership
organization of the Company or the Parent.
6.18 POST-CLOSING MATTERS.
The Parent and the Company agree, and will cause each Subsidiary, to
deliver the Mortgages and Assignment of Rents designated to be delivered
post-closing in PART B OF ANNEX 4 in accordance with the terms and provisions
of such Annex.
6.19 EXCLUDED SECURITIZATION SUBSIDIARY.
The Parent and the Company agree, at all times when the Excluded
Securitization Subsidiary shall exist, not to, directly or indirectly, take,
nor to permit any Subsidiary to take, any action which would result in the
assets and liabilities of any one or more of the Parent, the Company or any
Subsidiary being substantively consolidated with and into the assets and
liabilities of the Excluded Securitization Subsidiary in the bankruptcy
proceedings of the Excluded Securitization Subsidiary. The Parent and the
Company agree, within fifteen (15) days of the written request of the
Required Holders, to cause a legal opinion (of counsel reasonably
satisfactory to the Required Holders) to be delivered to the holders of Notes
which opinion states that, at such time, the assets and liabilities of any
one or more of the Parent, the Company or any Subsidiary would not be
substantively consolidated with and into the assets and liabilities of the
Excluded Securitization Subsidiary in the bankruptcy proceedings of the
Excluded Securitization Subsidiary. Such legal opinion shall not be subject
to any qualifications other than those which are typically found in legal
opinions covering such matters.
7. INFORMATION AS TO PARENT, COMPANY AND OTHER SUBSIDIARIES
7.1 FINANCIAL AND BUSINESS INFORMATION.
The Company and the Guarantor will deliver to each holder of Notes (and,
with respect to the matters identified in clause (i) and clause (j) hereof,
the Collateral Agent):
(a) QUARTERLY STATEMENTS -- as soon as practicable after the end of
each quarterly fiscal period in each fiscal year of the Parent (other than
the last quarterly fiscal period of each such fiscal year), and in any
event within forty-five (45) days thereafter, duplicate copies of
(i) (A) consolidated balance sheets of the Parent and the
Subsidiaries and (B) a balance sheet of the REIT Party, in each case,
as at the end of such quarter, and
(ii) (A) consolidated statements of income and partners'
capital and cash flows of the Parent and the Subsidiaries and (B) a
statement of income and partners' capital and cash flows of the REIT
Party, in each case, for such quarter and (in the case of the second
and third quarters) for the portion of the fiscal year ending with
such quarter,
setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP applicable to quarterly
financial statements generally and certified as complete and correct,
subject to changes resulting from year-end adjustments, by a Senior
Financial Officer, and accompanied by the certificate required by Section
7.2 hereof;
(b) ANNUAL STATEMENTS -- as soon as practicable after the end of
each fiscal year of the Parent, and in any event within ninety (90) days
thereafter, duplicate copies of
U.S. RESTAURANT PROPERTIES OPERATING L.P. 36 NOTE PURCHASE AGREEMENT
(i) (A) consolidated balance sheets of the Parent and the
Subsidiaries and (B) a balance sheet of the REIT Party, in each case,
as at the end of such year, and
(ii) consolidated statements of income and partners' capital
and cash flows of the Parent and the Subsidiaries and (B) a statement
of income and partners' capital and cash flows of the REIT Party, in
each case, for such year,
setting forth in each case in comparative form consolidated figures for the
previous fiscal year, all in reasonable detail, prepared in accordance with
GAAP and accompanied by
(A) in the case of such financial statements, an
opinion of independent certified public accountants of
recognized national standing, which opinion shall, without
qualification (including, without limitation, qualifications
related to the scope of the audit or the ability of the Parent
or any Subsidiary to continue as a going concern), state that
such financial statements present fairly, in all material
respects, the financial position of the companies being reported
upon and their results of operations and cash flows and have
been prepared in conformity with GAAP, and that the examination
of such accountants in connection with such financial statements
has been made in accordance with generally accepted auditing
standards, and that such audit provides a reasonable basis for
such opinion in the circumstances,
(B) a certification by a Senior Financial Officer that
such statements are complete and correct, and
(C) the certificates required by Section 7.2 and
Section 7.3 hereof;
(c) AUDIT REPORTS -- promptly upon receipt thereof, a copy of each
other report submitted to the Parent, the Company or any other Subsidiary
at any time after the Closing Date by independent accountants in
connection with any annual, interim or special audit made by them of the
books of the Parent, the Company or any other Subsidiary;
(d) SEC AND OTHER REPORTS -- promptly upon their becoming available:
(i) each financial statement, report, notice or proxy
statement sent by the Parent, the Company or any other Subsidiary to
limited partners, stockholders or other holders of equity interests
generally,
(ii) each regular or periodic report (including, without
limitation, each Form 10-K, Form 10-Q and Form 8-K), any registration
statement which shall have become effective, and each final prospectus
and all amendments thereto filed by the Parent, the Company or any
other Subsidiary with the Securities and Exchange Commission (and any
successor agency), and
(iii) all press releases and other statements made available by
the Parent, the Company or any other Subsidiary to the public
concerning material developments in the business of the Parent, the
Company or the other Subsidiaries;
(e) NOTICE OF DEFAULT OR EVENT OF DEFAULT -- within two (2) Business
Days of a Senior Officer of the Company or any Guarantor becoming aware of
the existence of any condition or event which constitutes a
U.S. RESTAURANT PROPERTIES OPERATING L.P. 37 NOTE PURCHASE AGREEMENT
Default or an Event of Default, a written notice specifying the nature
and period of existence thereof and what action the Company and the
Guarantors are taking or propose to take with respect thereto;
(f) NOTICE OF CLAIMED DEFAULT -- within two (2) Business Days of a
Senior Officer of the Company or any Guarantor becoming aware that the
holder of any Note, or of any other Debt of the Parent, the Company or
any other Subsidiary, shall have given notice or taken any other action
with respect to a claimed Default, Event of Default, default or event of
default, a written notice specifying the notice given or action taken by
such holder and the nature of the claimed Default, Event of Default,
default or event of default and what action the Company and the
Guarantors are taking or propose to take with respect thereto;
(g) ERISA --
(i) within two (2) Business Days of becoming aware of the
occurrence of any "reportable event" (as such term is defined in
section 4043 of ERISA) for which notice thereof has not been waived
pursuant to regulations of the DOL, or "prohibited transaction" (as
such term is defined in section 406 of ERISA or section 4975 of the
IRC) in connection with any Pension Plan or any trust created
thereunder, a written notice specifying the nature thereof, what
action the Company and the Guarantors are taking or propose to take
with respect thereto, and, when known, any action taken by the IRS,
the DOL or the PBGC with respect thereto; and
(ii) prompt written notice of and, where applicable, a
description of
(A) any notice from the PBGC in respect of the
commencement of any proceedings pursuant to section 4042 of
ERISA to terminate any Pension Plan or for the appointment of
a trustee to administer any Pension Plan, and any distress
termination notice delivered to the PBGC under section 4041 of
ERISA in respect of any Pension Plan, and any determination of
the PBGC in respect thereof,
(B) the placement of any Multiemployer Plan in
reorganization status under Title IV of ERISA, any Multiemployer
Plan becoming "insolvent" (as such term is defined in section
4245 of ERISA) under Title IV of ERISA, or the whole or partial
withdrawal of the Parent, the Company or any other ERISA
Affiliate from any Multiemployer Plan and the withdrawal
liability incurred in connection therewith, or
(C) the occurrence of any event, transaction or
condition that could result in the incurrence of any liability
of the Parent, the Company or any other ERISA Affiliate or the
imposition of a Lien on the Property of the Parent, the Company
or any other ERISA Affiliate, in either case pursuant to Title
I or Title IV of ERISA or pursuant to the penalty or excise tax
or security provisions of the IRC,
PROVIDED that the Company and the Guarantors shall not be required to
deliver any such notice at any time when the aggregate amount of the
actual or potential liability of the Parent, the Company and the other
Subsidiaries in respect of all such events could not reasonably be
expected to have a Material Adverse Effect;
(h) ACTIONS, PROCEEDINGS -- promptly after the commencement of any
action or proceeding relating to the Parent, the Company or any other
Subsidiary in any court or before any Governmental Authority or
arbitration board or tribunal as to which there is a reasonable
U.S. RESTAURANT PROPERTIES OPERATING L.P. 38 NOTE PURCHASE AGREEMENT
possibility of an adverse determination and that, if adversely
determined, is reasonably likely to have a Material Adverse Effect, a
written notice specifying the nature and period of existence thereof and
what action the Company and the Guarantors are taking or propose to take
with respect thereto;
(i) OTHER CREDITORS -- promptly upon the request of any holder of
Notes, copies of any statement, report or certificate furnished to any
holder of Debt of the Parent, the Company or any other Subsidiary
(including, without limitation, statements, reports and certificates
delivered to the Banks pursuant to, or in connection with, the Bank
Credit Agreement) to the extent that the information contained in such
statement, report or certificate has not already been delivered to each
holder of Notes;
(j) RULE 144A -- promptly upon the request of any holder of Notes,
information required to comply with 17 C.F.R. 230.144A, as amended from
time to time; and
(k) REQUESTED INFORMATION -- with reasonable promptness, such other
data and information as from time to time may be requested by any holder of
Notes.
7.2 OFFICERS' CERTIFICATES.
Each set of financial statements delivered to each holder of Notes
pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by a
certificate of a Senior Financial Officer setting forth:
(a) COVENANT COMPLIANCE -- the information (including detailed
calculations) required in order to establish whether the Parent, the
Company and the other Subsidiaries were in compliance with the
requirements of Section 6.4 through Section 6.10, inclusive, during the
period covered by the income statement then being furnished (including,
without limitation, with respect to each such Section, where applicable,
the calculations of the maximum or minimum amount, ratio or percentage,
as the case may be, permissible under the terms of such Sections, and the
calculation of the amounts, ratio or percentage then in existence); and
(b) EVENT OF DEFAULT -- a statement that the signer has reviewed
the relevant terms hereof and of the other Financing Documents and has
made, or caused to be made, under such signer's supervision, a review of
the transactions and conditions of the Parent, the Company and the other
Subsidiaries from the beginning of the accounting period covered by the
income statements being delivered therewith to the date of the
certificate and that such review shall not have disclosed the existence
during such period of any condition or event that constitutes a Default
or an Event of Default or, if any such condition or event existed or
exists, specifying the nature and period of existence thereof and what
action the Company and the Guarantors shall have taken or propose to take
with respect thereto.
7.3 ACCOUNTANTS' CERTIFICATES.
Each set of annual financial statements delivered pursuant to Section
7.1(b) shall be accompanied by a certificate of the accountants who certify
such financial statements, stating that they have reviewed this Agreement and
stating further, that, in making their audit, such accountants have not
become aware of any condition or event that then constitutes a Default or an
Event of Default unless such accountants are aware that any such condition or
event then exists, and in such case specifying the nature and period of
existence thereof.
U.S. RESTAURANT PROPERTIES OPERATING L.P. 39 NOTE PURCHASE AGREEMENT
7.4 INSPECTION.
The Company and the Guarantors will permit the representatives of each
holder of Notes and the Collateral Agent, at the expense of the Company and
the Guarantors at any time when a Default or an Event of Default exists, and
otherwise at the expense of such holder or the Collateral Agent, to visit and
inspect any of the Properties of the Parent, the Company or any other
Subsidiary, to examine all their respective books of account, records,
reports and other papers, to make copies and extracts therefrom and to
discuss their respective affairs, finances and accounts with their respective
officers, employees and independent public accountants (and by this provision
the Company and the Guarantors authorize such accountants to discuss the
finances and affairs of the Parent, the Company and the other Subsidiaries),
all at such reasonable times and as often as may be reasonably requested.
7.5 CONFIDENTIAL INFORMATION.
For the purposes of this Section 7.5, "CONFIDENTIAL INFORMATION" means
information delivered to you by or on behalf of the Parent, the Company or
any other Subsidiary in connection with the transactions contemplated by or
otherwise pursuant to this Agreement or the other Financing Documents that is
proprietary in nature and that was clearly marked or labeled or otherwise
adequately identified when received by you as being confidential information
of the Parent, the Company or such other Subsidiary, PROVIDED that such term
does not include information that:
(a) was publicly known or otherwise known to you prior to the time
of such disclosure;
(b) subsequently becomes publicly known through no act or omission
by you or any person acting on your behalf;
(c) otherwise becomes known to you other than through disclosure by
the Parent, the Company or any other Subsidiary; or
(d) constitutes financial statements delivered to you under Section
7.1 that are otherwise publicly available.
You will maintain the confidentiality of such Confidential Information in
accordance with procedures adopted by you in good faith to protect confidential
information of third parties delivered to you, PROVIDED that you may deliver or
disclose Confidential Information to:
(i) your directors, officers, trustees, employees, agents, attorneys
and affiliates (to the extent such disclosure reasonably relates to the
administration of the investment represented by your Notes);
(ii) your financial advisors and other professional advisors who
agree to hold confidential the Confidential Information substantially in
accordance with the terms of this Section 7.5;
(iii) any other holder of any Note;
(iv) any Institutional Investor to which you sell or offer to sell
such Note or any part thereof or any participation therein (if such Person
has been notified in writing prior to its receipt of such Confidential
Information of the provisions of this Section 7.5);
(v) any Person from which you offer to purchase any Security of the
Parent, the Company or any other Subsidiaries (if such Person has been
notified in writing prior to its receipt of such Confidential Information
of the provisions of this Section 7.5);
U.S. RESTAURANT PROPERTIES OPERATING L.P. 40 NOTE PURCHASE AGREEMENT
(vi) any federal or state regulatory authority having jurisdiction
over you;
(vii) the National Association of Insurance Commissioners or any
similar organization, or any nationally recognized rating agency that
requires access to information about your investment portfolio; or
(viii) any other Person to which such delivery or disclosure may
be necessary or appropriate (w) to effect compliance with any law, rule,
regulation or order applicable to you, (x) in response to any subpoena or
other legal process, (y) in connection with any litigation to which you are
is a party or (z) if an Event of Default has occurred and is continuing, to
the extent you may reasonably determine such delivery and disclosure to be
necessary or appropriate in the enforcement or for the protection of the
rights and remedies under your Notes, this Agreement and the other
Financing Documents.
Each holder of a Note, by its acceptance of a Note, will be deemed to have
agreed to be bound by and to be entitled to the benefits of this Section 7.5
as though it were a party to this Agreement. On reasonable request by the
Company or a Guarantor in connection with the delivery to any holder of a
Note of information required to be delivered to such holder under this
Agreement or requested by such holder (other than a holder that is a party to
this Agreement or its nominee), such holder will confirm in writing that it
is bound by the provisions of this Section 7.5.
8. EVENTS OF DEFAULT
8.1 NATURE OF EVENTS.
An "Event of Default" shall exist if any of the following occurs and is
continuing:
(a) PRINCIPAL OR MAKE-WHOLE AMOUNT PAYMENTS -- the Company shall
fail to make any payment of principal or Make-Whole Amount on any Note on
or before the date such payment is due;
(b) INTEREST PAYMENTS -- the Company shall fail to make any payment
of interest on any Note on or before five (5) Business Days after the date
such payment is due;
(c) PARTICULAR COVENANT DEFAULTS -- the Parent, the Company or any
other Subsidiary shall fail to perform, observe or comply with any covenant
contained in Section 6.4 through Section 6.14, inclusive, in Section 6.16
or Section 6.17, in Section 7.1(e) or Section 7.1(f), or in Section 10;
(d) OTHER DEFAULTS -- the Parent, the Company or any other
Subsidiary shall fail to comply with any other provision hereof or of any
other Financing Document, and such failure continues for more than thirty
(30) days after such failure shall first become known to any Senior Officer
of the Company or any Guarantor;
(e) WARRANTIES OR REPRESENTATIONS -- any warranty, representation
or other statement by or on behalf of the Parent, the Company or any
Subsidiary contained herein or in any Financing Document, or in any
certificate, instrument or other statement furnished in compliance with or
in reference hereto or thereto shall have been false or misleading in any
material respect when made;
U.S. RESTAURANT PROPERTIES OPERATING L.P. 41 NOTE PURCHASE AGREEMENT
(f) DEFAULT ON DEBT OR SECURITY --
(i) the Parent, the Company or any Subsidiary shall fail to
make any payment on any Debt or any Security when due;
(ii) any event shall occur or any condition shall exist in
respect of any Debt or any Security of the Parent or any Subsidiary,
or under any agreement securing or relating to any such Debt or
Security, that immediately or with any one or more of the passage of
time or the giving of notice, and that has not been cured, waived or
remedied within forty-five (45) days from the occurrence or existence
thereof:
(A) causes, or permits any holder thereof or a trustee
therefor to cause, such Debt or Security, or a portion thereof,
to become due prior to its stated maturity or prior to its
regularly scheduled date or dates of payment;
(B) permits any one or more of the holders thereof or
a trustee therefor to require the Parent, the Company or any
other Subsidiary to repurchase such Debt or Security from such
holder and any such holder or trustee exercises (or attempts to
exercise) such right; or
(C) permits any one or more of the holders of any
Security of the Parent, the Company, any other Subsidiary or any
Managing General Partner to appoint a substitute general partner
of the Company or the Parent, or to elect a majority of the
directors on the board of directors of the Managing General
Partner of the Company or the Parent;
PROVIDED that the aggregate amount of all obligations in respect of
all such Debt and Securities exceeds at such time Two Million Dollars
($2,000,000); or
(iii) an "Event of Default," shall have occurred or shall exist
(after any applicable period of notice and cure) under, and as defined
in, the Bank Credit Agreement, as amended and as in effect at such
time or any default or event of default shall have occurred or shall
exist (after any applicable period of notice and cure) under any of
the other Bank Debt Documents, as amended and as in effect at such
time;
(g) INVOLUNTARY BANKRUPTCY PROCEEDINGS --
(i) a receiver, liquidator, custodian or trustee of the
Parent, the Company, any other Subsidiary or any Managing General
Partner, or of all or any part of the Property of any such Person,
shall be appointed by court order and such order shall remain in
effect for more than forty-five (45) days, or an order for relief
shall be entered with respect to the Parent, the Company, any other
Subsidiary or any Managing General Partner, or the Parent, the
Company, any other Subsidiary or any Managing General Partner shall be
adjudicated a bankrupt or insolvent;
(ii) any of the Property of the Parent, the Company, any other
Subsidiary or any Managing General Partner shall be sequestered by
court order and such order shall remain in effect for more than
forty-five (45) days; or
(iii) a petition shall be filed against the Parent, the Company,
any other Subsidiary or any Managing General Partner under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt, dissolution or liquidation law of any
U.S. RESTAURANT PROPERTIES OPERATING L.P. 42 NOTE PURCHASE AGREEMENT
jurisdiction, whether now or hereafter in effect, and shall not be
dismissed within forty-five (45) days after such filing;
(h) VOLUNTARY PETITIONS -- the Parent, the Company, any other
Subsidiary or any Managing General Partner shall file a petition in
voluntary bankruptcy or seeking relief under any provision of any
bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt, dissolution or liquidation law of any jurisdiction, whether now or
hereafter in effect, or shall consent to the filing of any petition
against it under any such law;
(i) ASSIGNMENTS FOR BENEFIT OF CREDITORS, ETC. -- the Parent, the
Company, any other Subsidiary or any Managing General Partner shall
make an assignment for the benefit of its creditors, or admits in
writing its inability, or fails, to pay its debts generally as they
become due, or shall consent to the appointment of a receiver,
liquidator or trustee of the Parent, the Company, any other Subsidiary
or any Managing General Partner or of all or any part of the Property of
any such Person;
(j) UNDISCHARGED FINAL JUDGMENTS -- a final, non-appealable
judgment or final, non-appealable judgments for the payment of money
aggregating in excess of Two Million Dollars ($2,000,000) is or are
outstanding against one or more of the Parent, the Company or any other
Subsidiary and any one of such judgments shall have been outstanding for
more than forty-five (45) days from the date of its entry and shall not
have been bonded, discharged in full or stayed;
(k) UNCONDITIONAL GUARANTY --
(i) the Unconditional Guaranty shall cease to be in full force
and effect or shall be declared by a court or Governmental Authority
of competent jurisdiction to be void, voidable or unenforceable
against any Guarantor;
(ii) the validity or enforceability of the Unconditional
Guaranty against any Guarantor shall be contested by any such
Guarantor, or any subsidiary or affiliate thereof; or
(iii) any Guarantor, or any subsidiary or affiliate thereof,
shall deny that such Guarantor has any further liability or obligation
under the Unconditional Guaranty; or
(l) SECURITY INTEREST -- any security interest or Lien granted to
the Collateral Agent pursuant to any Security Document shall fail at any
time to constitute a first priority security interest in or Lien on, or
assignment of, the Collateral described in such Security Document,
subject only to Liens permitted thereunder, or any of the Security
Documents shall cease to be in full force and effect in whole or in part
for any reason whatsoever except as specified therein.
If any action, condition, event or other matter would, at any time,
constitute an Event of Default under any provision of this Section 8.1, then
an Event of Default shall exist, regardless of whether the same or a similar
action, condition, event or other matter is addressed in a different
provision of this Section 8.1 and would not constitute an Event of Default at
such time under such different provision.
8.2 DEFAULT REMEDIES.
(a) ACCELERATION ON EVENT OF DEFAULT.
(i) If an Event of Default specified in clause (g), clause (h)
or clause (i) of Section 8.1 shall exist, all of the Notes at the time
outstanding shall automatically become immediately due and
U.S. RESTAURANT PROPERTIES OPERATING L.P. 43 NOTE PURCHASE AGREEMENT
payable together with interest accrued thereon and, to the extent
permitted by applicable law, the Make-Whole Amount (if any) in
respect thereof, in each case without presentment, demand, protest
or notice of any kind, all of which are hereby expressly waived,
and the Company shall forthwith pay to the holder or holders of all
the Notes then outstanding the entire principal of and interest
accrued on the Notes and, to the extent permitted by applicable
law, the Make-Whole Amount at such time with respect to the
principal amount of the Notes at the time outstanding and all other
amounts owing under the Note Purchase Agreements or the other
Financing Documents to such holder or holders.
(ii) If an Event of Default other than those specified in
clause (g), clause (h) or clause (i) of Section 8.1 shall exist, the
Required Holders may exercise any right, power or remedy permitted to
such holder or holders by law and shall have, in particular, without
limiting the generality of the foregoing, the right to declare the
entire principal of, and all interest accrued on and, to the extent
permitted by applicable law, Make-Whole Amount (if any) in respect of,
all the Notes then outstanding to be, and such Notes shall thereupon
become, forthwith due and payable, without any presentment, demand,
protest or other notice of any kind, all of which are hereby expressly
waived, and the Company shall forthwith pay to the holder or holders
of all the Notes then outstanding the entire principal of and interest
accrued on such Notes and, to the extent permitted by applicable law,
the Make-Whole Amount at such time with respect to such principal
amount of the Notes and all other amounts owing under the Note
Purchase Agreements or the other Financing Documents to such holder or
holders.
(b) ACCELERATION ON PAYMENT DEFAULT. During the existence of an
Event of Default described in Section 8.1(a) or Section 8.1(b), and
irrespective of whether the Notes then outstanding shall have been
declared to be due and payable pursuant to Section 8.2(a)(ii), any
holder of Notes that shall have not consented to any waiver with respect
to such Event of Default may, at such holder's option, by notice in
writing to the Company, declare the Notes then held by such holder to
be, and such Notes shall thereupon become, forthwith due and payable
together with all interest accrued thereon, and, to the extent permitted
by applicable law, Make-Whole Amount (if any) in respect thereof,
without any presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived, and the Company shall
forthwith pay to such holder the entire principal of and interest
accrued on such Notes and, to the extent permitted by applicable law,
the Make-Whole Amount at such time with respect to such principal amount
of such Notes and all other amounts owing under the Note Purchase
Agreements and the other Financing Documents to such holder.
(c) VALUABLE RIGHTS. The Company acknowledges, and the parties
hereto agree, that the right of each holder to maintain its investment
in the Notes free from repayment by the Company (except as herein
specifically provided for) is a valuable right and that the provision
for payment of a Make-Whole Amount by the Company in the event that the
Notes are prepaid or are accelerated as a result of an Event of Default
under certain circumstances is intended to provide compensation for the
deprivation of such right under such circumstances.
(d) OTHER REMEDIES. During the existence of an Event of Default
and irrespective of whether the Notes then outstanding shall have been
declared to be due and payable pursuant to Section 8.2(a)(ii) and
irrespective of whether any holder of Notes then outstanding shall
otherwise have pursued or be pursuing any other rights or remedies, any
holder of Notes may proceed to protect and enforce its rights under this
Agreement and the other Financing Documents and under such Notes by
U.S. RESTAURANT PROPERTIES OPERATING L.P. 44 NOTE PURCHASE AGREEMENT
exercising such remedies as are available to such holder in respect
thereof under applicable law, either by suit in equity or by action at
law, or both, whether for specific performance of any agreement
contained herein or in aid of the exercise of any power granted herein,
PROVIDED that the maturity of such holder's Notes may be accelerated
only in accordance with Section 8.2(a) and Section 8.2(b).
(e) NONWAIVER. No course of dealing on the part of any holder of
Notes nor any delay or failure on the part of any holder of Notes to
exercise any right shall operate as a waiver of such right or otherwise
prejudice such holder's rights, powers and remedies.
(f) SECURITY DOCUMENTS. The holders of the Notes shall be
entitled to all of the rights, benefits, and remedies provided in the
Security Documents. No delay or omission of the Collateral Agent or of
any holder or holders of Notes to exercise any right or power arising
from any default on the part of the Company hereunder, under any
Security Document or under any other Financing Document shall exhaust or
impair any such right or power or prevent its exercise during the
continuance of such default. No waiver by the Collateral Agent or any
holder or holders of Notes of any such default, whether such waiver be
full or partial, shall extend to or be taken to affect any subsequent
default, or to impair the rights resulting therefrom except as may
otherwise be provided herein. No remedy hereunder, in any Security
Document or in any other Financing Document is intended to be exclusive
of any other remedy but each and every remedy shall be cumulative and in
addition to any and every other remedy given hereunder or otherwise
existing. By its acceptance of any Note, the holder of each Note shall
be deemed to have agreed to be bound by the applicable provisions of
each of the Security Documents.
8.3 ANNULMENT OF ACCELERATION OF NOTES.
If a declaration is made pursuant to Section 8.2(a)(ii), then and in
every such case, the Required Holders may, by written instrument filed with
the Company, rescind and annul such declaration and the consequences thereof,
PROVIDED that at the time such declaration is annulled and rescinded:
(a) no judgment or decree shall have been entered for the payment
of any moneys due on or pursuant hereto or the Notes;
(b) all arrears of interest upon all the Notes and all other sums
payable hereunder and under the Notes (except any principal of, or
interest or Make-Whole Amount on, the Notes that shall have become due
and payable by reason of such declaration under Section 8.2(a)(ii))
shall have been duly paid; and
(c) each and every other Default and Event of Default shall have
been waived pursuant to Section 11.5 or otherwise made good or cured;
and PROVIDED FURTHER that no such rescission and annulment shall extend to or
affect any subsequent Default or Event of Default or impair any right consequent
thereon.
9. INTERPRETATION OF THIS AGREEMENT
9.1 TERMS DEFINED.
As used herein, the following terms have the respective meanings set forth
below or set forth in the Section of this Agreement following such term:
AFFILIATE -- means, at any time, a Person (including, without
limitation, the Excluded Securitization Subsidiary, but excluding each other
Person which is a Subsidiary)
U.S. RESTAURANT PROPERTIES OPERATING L.P. 45 NOTE PURCHASE AGREEMENT
(a) that directly or indirectly through one or more intermediaries
Controls, or is Controlled by, or is under common Control with, the Parent
or the Company,
(b) that beneficially owns or holds five percent (5%) or more of any
class of partnership interests or other voting or equity interests of the
Parent or the Company,
(c) five percent (5%) or more of the voting or equity interests of
which is beneficially owned or held by the Parent, the Company or another
Subsidiary, or
(d) that is a general partner (including, without limitation, any
Managing General Partner), a limited partner, an officer, a director or
a trustee, as the case may be (or a member of the immediate family of a
general partner, a limited partner, an officer, director or trustee) of
the Parent, the Company, any other Subsidiary or any Managing General
Partner,
at such time.
As used in this definition:
CONTROL -- means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of
a Person, whether through the ownership of voting securities, by
contract or otherwise.
AFTER-ACQUIRED PROPERTY -- Section 6.11(b).
AGREEMENT, THIS -- means this Note Purchase Agreement, as it may be
amended, supplemented and restated from time to time.
ASSET DISPOSITION -- means any Transfer EXCEPT:
(a) any Transfer from a Subsidiary (other than the Company) to the
Parent, the Company or a Wholly-Owned Subsidiary, so long as immediately
before and immediately after the consummation of any such Transfer and
after giving effect thereto, no Default or Event of Default exists; and
(b) any Transfer made in the ordinary course of business and
involving only property that is either (i) inventory held for sale or
(ii) equipment, fixtures, supplies or materials no longer required in
the operation of the business of the Parent, the Company or any other
Subsidiary or that is obsolete.
BANK AGENT -- means and includes Comerica Bank Texas, as agent for the
Banks under the Bank Credit Agreement, and any successor agent for the Banks
thereunder.
BANK CREDIT AGREEMENT -- means the Amended and Restated Secured Loan
Agreement, dated as of February 15, 1996, among the Company, the Banks and
the Bank Agent, as amended by (i) that certain First Amendment to Amended and
Restated Secured Loan Agreement, dated as of May 8, 1996, among the Company,
the Parent, the Banks and the Bank Agent, (ii) that certain Second Amended
and Restated Secured Loan Agreement, dated as of December 23, 1996, among the
Company, the Parent, the Banks and the Bank Agent, and as the same may be
amended, modified or supplemented from time to time and in accordance with
its terms and the terms of the Intercreditor/Collateral Agency Agreement.
BANK DEBT DOCUMENTS -- Section 2.22.
BANKS -- means and includes Comerica Bank Texas, Compass Bank, LaSalle
National Bank, First American Bank, SSB, Guaranty Federal Bank, F.S.B., their
U.S. RESTAURANT PROPERTIES OPERATING L.P. 46 NOTE PURCHASE AGREEMENT
respective successors and assigns, and any additional commercial, banking or
financial institutions which become parties to the Bank Credit Agreement from
time to time.
BUSINESS DAY -- means a day other than a Saturday, a Sunday or a day on
which the bank designated by the holder of a Note to receive for such
holder's account payments on such Note is required by law (other than a
general banking moratorium or holiday for a period exceeding four (4)
consecutive days) to be closed.
BUSINESS TRUST I -- the introductory sentence.
BUSINESS TRUST II -- the introductory sentence.
CAPITAL LEASE -- means, at any time, a lease with respect to which the
lessee is required to recognize, for accounting purposes, the acquisition of
an asset and the incurrence of a liability at such time, or in respect of
which the lessee is required to disclose the amount of such asset and
liability in a note to such lessee's financial statements, in each case in
accordance with GAAP.
CAPITAL LEASE OBLIGATIONS -- means, with respect to any Person and a
Capital Lease, the amount of the obligation of such Person as the lessee
under such Capital Lease which would, in accordance with GAAP, appear as a
liability on, or be disclosed as a liability in a note to, a balance sheet of
such Person.
CAROLINA -- the introductory sentence.
CHANGE IN CONTROL -- means, at any time:
(i) the acquisition, holding or control, directly or indirectly, by
(A) any "person" (as such term is used in section 13(d) and
section 14(d)(2) of the Exchange Act as in effect on the Closing Date)
or
(B) related Persons constituting a "group" (as such term is
used in Rule 13d-5 under the Exchange Act as in effect on the Closing
Date)
(other than by a Permitted Management Transferee or in a Permitted REIT
Conversion), of more than fifty percent (50%) of the Voting Units of the
Parent;
(ii) the acquisition, holding or control, directly or indirectly, by
(A) any "person" (as such term is used in section 13(d) and
section 14(d)(2) of the Exchange Act as in effect on the Closing Date)
or
(B) related Persons constituting a "group" (as such term is
used in Rule 13d-5 under the Exchange Act as in effect on the Closing
Date),
other than the Parent, a Wholly-Owned Subsidiary or a Permitted Management
Transferee, of more than fifty percent (50%) of the Voting Units of the
Company;
(iii) the acquisition, holding or control, directly or indirectly, by
U.S. RESTAURANT PROPERTIES OPERATING L.P. 47 NOTE PURCHASE AGREEMENT
(A) any "person" (as such term is used in section 13(d) and
section 14(d)(2) of the Exchange Act as in effect on the Closing Date)
or
(B) related Persons constituting a "group" (as such term is
used in Rule 13d-5 under the Exchange Act as in effect on the Closing
Date),
(other than a Permitted Management Transferee) of more than fifty percent
(50%) of the Voting Units of any Managing General Partner; or
(iv) if such time is prior to the consummation of a Permitted REIT
Conversion, the failure of the Parent to legally and beneficially own,
directly or indirectly, ninety-nine and one one-hundredth percent (99.01%)
or more of the Voting Units of the Company.
CLOSING -- Section 1.2(b).
CLOSING DATE -- Section 1.2(b).
COLLATERAL -- means the "Collateral" as defined in the
Intercreditor/Collateral Agency Agreement.
COLLATERAL AGENT -- Comerica Bank - Texas, in its capacity as collateral
agent under the Intercreditor/Collateral Agency Agreement.
COLLATERAL RELEASE DATE -- Section 4.4(d)(i).
COLLATERAL RELEASE NOTICE -- Section 4.4(c).
COMBINED GAAP PARTNERS' CAPITAL -- means, at any time, total partners'
capital of the Company and the Parent on a combined basis determined at such
time in accordance with GAAP.
COMPANY -- the introductory sentence.
COMPANY PARTNERSHIP AGREEMENT -- means that certain Second Amended and
Restated Agreement of Limited Partnership of U.S. Restaurant Properties
Operating L.P. (formerly Burger King Operating Limited Partnership), dated as
of March 17, 1995, without giving effect to any amendment thereto.
COMPANY PARTNERSHIP CERTIFICATE -- means the Certificate of Limited
Partnership of Burger King Operating Limited Partnership filed with the
Secretary of State of the State of Delaware on December 10, 1985, as amended
by (a) the Amendment to the Certificate of Limited Partnership filed with
such Secretary of State on July 26, 1994, (b) the Amendment to the
Certificate of Limited Partnership filed with such Secretary of State on
November 30, 1994, (c) the Amendment to the Certificate of Limited
Partnership filed with such Secretary of State on June 13, 1996, and (d) the
Amendment to the Certificate of Limited Partnership filed with such Secretary
of State on June 17, 1996.
CONFIDENTIAL INFORMATION -- Section 7.5.
CONSOLIDATED CASH FLOW -- means, in respect of any period, the SUM of
(a) Consolidated Net Earnings, PLUS
(b) the aggregate amount of:
(i) the amount of all depreciation and amortization allowances
and other non-cash expenses of the Parent, the Company and the other
Subsidiaries, PLUS
U.S. RESTAURANT PROPERTIES OPERATING L.P. 48 NOTE PURCHASE AGREEMENT
(ii) taxes imposed on or measured by income or excess profits,
PLUS
(iii) Consolidated Fixed Charges
(to the extent, and only to the extent, that such aggregate amount was
deducted in the computation of Consolidated Net Earnings for such period)
in each case accrued for such period by the Parent, the Company and the other
Subsidiaries, determined on a consolidated basis for such Persons.
CONSOLIDATED FIXED CHARGES -- means, with respect to any period, the SUM of
(a) Consolidated Interest Expense for such period, PLUS
(b) Consolidated Minimum Operating Lease Rentals for such period.
CONSOLIDATED FUNDED DEBT -- means, as of any date of determination, the
total of all Funded Debt of the Parent, the Company and the other
Subsidiaries outstanding on such date, after eliminating all offsetting
debits and credits among the Parent, the Company and the other Subsidiaries
and all other items required to be eliminated in the course of the
preparation of consolidated financial statements of the Parent, the Company
and the other Subsidiaries in accordance with GAAP.
CONSOLIDATED INTEREST EXPENSE -- means, with respect to any period, the
SUM (without duplication) of the following (in each case, eliminating all
offsetting debits and credits between the Parent, the Company and the other
Subsidiaries and all other items required to be eliminated in the course of
the preparation of consolidated financial statements of the Parent, the
Company and the other Subsidiaries in accordance with GAAP):
(a) all interest in respect of Debt of the Parent, the Company and
the other Subsidiaries (including (x) imputed interest on Capital Lease
Obligations deducted in determining Consolidated Net Earnings for such
period, together with all interest capitalized or deferred during such
period and not deducted in determining Consolidated Net Earnings for
such period, and (y) the net interest expense for such period in respect
of Interest Rate Swaps entered into by the Parent, the Company, and the
other Subsidiaries), PLUS
(b) all debt discount and expense amortized or required to be
amortized in the determination of Consolidated Net Earnings for such
period, PLUS
(c) all fees and commissions in respect of letters of credit and
bankers' acceptances (and instruments serving similar functions),
whether or not representing obligations for borrowed money, accrued for
such period by the Parent, the Company and the other Subsidiaries.
CONSOLIDATED MINIMUM OPERATING LEASE RENTALS -- means, with respect to any
period,
(a) the SUM of the rental and other obligations required to be
paid during such period by the Parent, the Company or any other
Subsidiary as lessee under all Operating Leases of real or personal
Property (such real and personal property being referred to as the
"LEASED PROPERTY"), excluding any amount required to be paid by the
lessee (whether or not therein designated as rental or additional
rental) on account of maintenance and repairs, insurance, taxes,
assessments, water rates and similar charges, MINUS
U.S. RESTAURANT PROPERTIES OPERATING L.P. 49 NOTE PURCHASE AGREEMENT
(b) the SUM of the fixed rental payments received by the Parent, the
Company and the other Subsidiaries under Acceptable Subleases in respect of
such Leased Property during such period,
PROVIDED that, if at the date of determination, any such rental or other
obligations (or portion thereof) referred to in clause (a) are contingent or
not otherwise definitely determinable by the terms of the related Operating
Lease, the amount of such obligations (or such portion thereof) (i) shall be
assumed to be equal to the amount of such obligations for the period of
twelve (12) consecutive calendar months immediately preceding the date of
determination or (ii) if the related lease was not in effect during such
preceding twelve (12) month period, shall be the amount estimated by a Senior
Financial Officer on a reasonable basis and in good faith.
As used in this definition,
ACCEPTABLE SUBLEASE -- means a sublease that is non-cancelable by the
sublessee having a term (including terms of renewal or extension at the
option of the sublessor, whether or not such option has been exercised)
expiring more than one (1) year after the commencement of the initial term
thereof.
CONSOLIDATED NET EARNINGS -- means, with reference to any period, the
net income (or loss) of the Parent, the Company and the other Subsidiaries
for such period (taken as a cumulative whole), as determined in accordance
with GAAP, after eliminating all offsetting debits and credits among the
Parent, the Company and the other Subsidiaries and all other items required
to be eliminated in the course of the preparation of consolidated financial
statements of the Parent, the Company and the other Subsidiaries in
accordance with GAAP, PROVIDED that there shall be excluded:
(a) the income (or loss) of any Person accrued prior to the date it
becomes a Subsidiary or is merged into or consolidated with the Parent, the
Company or another Subsidiary, and the income (or loss) of any Person,
substantially all of the assets of which have been acquired in any manner,
realized by such other Person prior to the date of acquisition;
(b) the income (or loss) of any Person (other than a Subsidiary) in
which the Parent, the Company or any other Subsidiary has an ownership
interest, except to the extent that any such income has been actually
received by the Parent, the Company or such other Subsidiary in the form of
cash dividends or similar cash distributions;
(c) the undistributed earnings of any Subsidiary (other than the
Company and any Guarantor) to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary is not at the time
permitted by the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation
applicable to such Subsidiary;
(d) any aggregate net gain and net loss during such period arising
from extraordinary items or transactions;
(e) any gain arising from the acquisition of any Security, or the
extinguishment, under GAAP, of any Debt, of the Parent, the Company or any
other Subsidiary; and
(f) in the case of a successor to the Parent by consolidation or
merger or as a transferee of its assets, any earnings of the successor
entity in respect thereof prior to such consolidation, merger or transfer
of assets.
CONSOLIDATED PARTNERS' CAPITAL -- means, at any time, the SUM of the total
general partners' capital and the total limited partners' capital of the Parent,
U.S. RESTAURANT PROPERTIES OPERATING L.P. 50 NOTE PURCHASE AGREEMENT
the Company and the other Subsidiaries that would be shown at such time on a
consolidated balance sheet for such Persons prepared in accordance with GAAP.
CONSOLIDATED TOTAL ASSETS -- means, at any time, the total assets of the
Parent, the Company and the other Subsidiaries which would be shown as assets on
a consolidated balance sheet for such Persons as of such time prepared in
accordance with GAAP.
CONSOLIDATED TOTAL CAPITALIZATION -- means, at any time, the SUM of
(a) Adjusted Consolidated Partners' Capital, PLUS
(b) Consolidated Funded Debt,
in each case, determined at such time.
For the purposes hereof, "ADJUSTED CONSOLIDATED PARTNERS' CAPITAL"
means, at any time, the SUM of
(i) Consolidated Partners' Capital at such time, PLUS
(ii) if at such time, the SUM of
(A) the aggregate Net Proceeds of Partnership Interests
of the Parent and the Net Proceeds of Partnership Interests of
the REIT Party PLUS
(B) the aggregate value of equity interests issued by
the Parent, the Company or the Subsidiaries as payment of the
purchase price for real Property acquired by any of such Persons
(value of such equity determined by the purchase price of such
real Property),
in each case during the period commencing on the Closing Date and
ending at such time, exceeds $90,000,000, an amount equal to the SUM
of (I) the aggregate accumulated depreciation expense and (II) the
aggregate amount of amortization with respect to investments in direct
financing leases, in each case, for the Parent, the Company and the
Subsidiaries for such period.
CONTROL EVENT -- means:
(a) the execution by the Parent, any Subsidiary or any Affiliate of
any letter of intent or similar agreement with respect to any proposed
transaction or event or series of transactions or events that, individually
or in the aggregate, could reasonably be expected to result in a Change in
Control; or
(b) the execution of any written agreement that, when fully
performed by the parties thereto, would result in a Change in Control.
DEBT -- with respect to any Person means, at any time, without duplication,
(a) its liabilities for borrowed money;
(b) its liabilities for the deferred purchase price of Property
acquired by such Person (excluding accounts payable arising in the
ordinary course of business but including all liabilities created or
arising under any conditional sale or other title retention agreement
with respect to any such Property);
(c) all liabilities appearing on its balance sheet in accordance
with GAAP in respect of Capital Leases;
U.S. RESTAURANT PROPERTIES OPERATING L.P. 51 NOTE PURCHASE AGREEMENT
(d) all liabilities for borrowed money secured by any Lien with
respect to any Property owned by such Person (whether or not it has assumed
or otherwise become liable for such liabilities); and
(e) any Guaranty of such Person with respect to liabilities of a
type described in any of clauses (a) through (f) hereof.
Debt of any Person shall include all obligations of such Person of the
character described in clauses (a) through (e) to the extent such Person
remains legally liable in respect thereof notwithstanding that any such
obligation is deemed to be extinguished under GAAP but shall not include any
unfunded obligations of such Person in respect of any Pension Plans (whether
such obligations exist on the Closing Date or arise thereafter).
DEBT PREPAYMENT APPLICATION -- means, with respect to any Transfer of
Property, the application by the Parent, the Company or the other
Subsidiaries of cash in an amount equal to the Net Proceeds Amount with
respect to such Transfer to pay, on a PRO RATA basis the outstanding Senior
Funded Debt of the Parent, the Company or the other Subsidiaries (other than
Senior Funded Debt owing to the Parent, the Company, any of the other
Subsidiaries or any Affiliate and Senior Funded Debt in respect of any
revolving credit or similar credit facility providing the Parent, the Company
or any of the other Subsidiaries with the right to obtain loans or other
extensions of credit from time to time, except to the extent that in
connection with such payment of Senior Funded Debt the availability of credit
under such credit facility is permanently reduced by an amount not less than
the amount of such proceeds applied to the payment of such Senior Funded
Debt), PROVIDED THAT in the course of making such application the Company
shall offer to prepay each outstanding Note in a principal amount which, when
added to the Make-Whole Amount applicable thereto, equals the Ratable Portion
for such Note. If any holder of a Note fails to accept such offer of
prepayment, then, for purposes of the preceding sentence only, the Company
nevertheless will be deemed to have paid Senior Funded Debt in an amount
equal to the Ratable Portion for such Note.
As used in this definition,
RATABLE PORTION -- means, for any Note, an amount equal to the product
of (x) the Net Proceeds Amount being so applied to the payment of Senior
Funded Debt MULTIPLIED BY (y) a fraction the numerator of which is the
outstanding principal amount of such Note and the denominator of which is
the aggregate principal amount of Senior Funded Debt of the Parent, the
Company and the other Subsidiaries.
DEFAULT -- means an event or condition the occurrence of which would, with
the lapse of time or the giving of notice or both, become an Event of Default.
DISPOSITION VALUE -- means, at any time, with respect to any Property
(a) in the case of Property that does not constitute Subsidiary
Stock, the book value thereof, valued at the time of such disposition in
good faith by the Parent, and
(b) in the case of Property that constitutes Subsidiary Stock, an
amount equal to that percentage of book value of the assets of the
Subsidiary that issued such stock or equity interests as is equal to the
percentage that the book value of such Subsidiary Stock represents of
the book value of all of the outstanding capital stock or other equity
interests of such Subsidiary (assuming, in making such calculations,
that all Securities convertible into such capital stock or other equity
interests are so converted and giving full effect to all transactions
that would occur or be required in connection with such conversion)
determined at the time of the disposition thereof, in good faith by the
Parent.
U.S. RESTAURANT PROPERTIES OPERATING L.P. 52 NOTE PURCHASE AGREEMENT
DISTRIBUTION -- means
(a) any distribution (whether in the form of cash or any other
Property), direct or indirect, made on account of any Voting Units in the
Parent, the Company or any other Subsidiary, other than a distribution made
by a Subsidiary to the Company or the Parent,
(b) any dividend or other distribution (whether in the form of
cash or any other Property), direct or indirect, made on account of any
Voting Units of any Subsidiary (other than Voting Units owned legally
and beneficially by the Parent, the Company or a Wholly-Owned
Subsidiary), except a dividend payable solely in Voting Units of such
Subsidiary, and except Voting Unit splits in connection with which no
Property is distributed and only the number of such outstanding Voting
Units is increased,
(c) any optional or mandatory redemption, retirement, purchase or
other acquisition, direct or indirect, of any Voting Units in the Parent,
the Company or any Subsidiary, or
(d) any optional or mandatory redemption, retirement, purchase or
other acquisition, direct or indirect, of any Voting Units of any
Subsidiary (other than Voting Units owned legally and beneficially by
the Parent, the Company or a Subsidiary), or of any warrants, rights, or
options to acquire any such Voting Units.
DOL -- means the Department of Labor and any successor agency.
DOLLARS or $ -- means United States of America dollars.
ENVIRONMENTAL PROTECTION LAW -- means any law, statute or regulation
(including, without limitation, CERCLA, RCRA and XXXX) enacted by any
Governmental Authority in connection with or relating to the protection or
regulation of the environment, including, without limitation, those laws,
statutes and regulations regulating the disposal, removal, production,
storing, refining, handling, transferring, processing or transporting of
hazardous or toxic substances, and any orders, decrees or judgments issued by
any court of competent jurisdiction in connection with any of the foregoing.
As used in this definition,
CERCLA -- means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended from time to time (by
XXXX or otherwise), and all rules and regulations promulgated in connection
therewith.
RCRA -- means the Resource Conservation and Recovery Act of 1976, as
amended from time to time, and all rules and regulations promulgated in
connection therewith.
XXXX -- means the Superfund Amendments and Reauthorization Act of
1986, as amended from time to time, and all rules and regulations
promulgated in connection therewith.
ERISA -- means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
ERISA AFFILIATE -- means any corporation or trade or business that:
(a) is a member of the same "controlled group of corporations"
(within the meaning of section 414(b) of the IRC) as the Parent; or
(b) is under "common control" (within the meaning of section 414(c)
of the IRC) with the Parent.
U.S. RESTAURANT PROPERTIES OPERATING L.P. 53 NOTE PURCHASE AGREEMENT
EVENT OF DEFAULT -- Section 8.1.
EXCHANGE ACT -- means the Securities Exchange Act of 1934, as amended from
time to time.
EXCLUDED SECURITIZATION SUBSIDIARY -- means a corporation, business
trust or other limited liability entity which the Company shall have
designated in writing after the Closing to each of the holders of the Notes
as the "Excluded Securitization Subsidiary" so long as
(a) the Parent, the Company or a Wholly- Owned Subsidiary at all
times owns all equity interests and all other ownership rights of such
Person,
(b) neither the Parent, the Company nor any Subsidiary is in any
manner liable, directly or indirectly, in any respect for any liabilities
or obligations of such Person,
(c) at no time prior to such designation shall such Person
previously have been designated as an "Excluded Securitization Subsidiary,"
(d) such Person shall have been formed for the sole purpose of
acquiring, and shall such Person shall have acquired, assets of the Parent,
the Company, a Wholly-Owned Subsidiary or any other Person in a transaction
which
(i) complies in all respects with the provisions of Section
6.8(a) and Section 6.12 and
(ii) shall have been entered into on an arm's length basis as
if such Person were in no manner affiliated with or owned by the
transferor of such assets and
(e) the Company shall have caused to be delivered to each of the
holders of Notes a legal opinion of counsel to the Company (which
counsel is reasonable satisfactory to the Required Holders) which states
that the assets and liabilities of the Company, the Parent or any
Subsidiary would not be substantively consolidated into such Person in
bankruptcy proceeding to which such Person was the subject. Such legal
opinion shall not be subject to any qualifications other than those
which are typically found in legal opinions covering such matters.
FAIR MARKET VALUE -- means, at any time, with respect to any Property,
the sale value of such Property that would be realized in an arm's-length
sale at such time between an informed and willing buyer and an informed and
willing seller under no compulsion to buy or sell, respectively.
FINANCING DOCUMENTS -- means the Note Purchase Agreements, the Notes,
the Intercreditor/Collateral Agency Agreement, the Security Documents, any
guaranty agreement provided to the holders of the Notes pursuant to Section
6.11(a)(i)(A), and in each such case the other agreements and instruments
executed in connection therewith, as each may be amended, restated or
otherwise modified from time to time.
FIXED CHARGES COVERAGE RATIO -- means, at any time, the RATIO of
(a) Consolidated Cash Flow for the period of four (4) consecutive
fiscal quarters ending on, or most recently ended prior to, such time TO
(b) Consolidated Fixed Charges for such period.
For the purposes of determining the "Fixed Charges Coverage Ratio,"
Consolidated Interest Expense shall include the portion of Consolidated Interest
U.S. RESTAURANT PROPERTIES OPERATING L.P. 54 NOTE PURCHASE AGREEMENT
Expense attributable to any Debt incurred by the Parent, the Company or any
other Subsidiary in connection with any acquisition of any Subsidiary and
Consolidated Cash Flow shall include the portion of Consolidated Cash Flow
attributable to such Subsidiary, in each case on a PRO FORMA basis as if such
acquisition was completed on the first day of the fiscal quarter during which
such acquisition was completed.
FOREIGN PENSION PLAN -- means any plan, fund or other similar program
(a) established or maintained outside of the United States of
America by any one or more of the Parent, the Company or the other
Subsidiaries primarily for the benefit of the employees (substantially all
of whom are aliens not residing in the United States of America) of the
Parent, the Company or such other Subsidiaries, which plan, fund or other
similar program provides for retirement income for such employees or
results in a deferral of income for such employees in contemplation of
retirement, and
(b) not otherwise subject to ERISA.
FUNDED DEBT -- means, with respect to any Person, all Debt of such
Person which by its terms or by the terms of any instrument or agreement
relating thereto matures, or which is otherwise payable or unpaid, one (1)
year or more from, or is directly or indirectly renewable or extendible at
the option of the obligor in respect thereof to a date one (1) year or more
(including, without limitation, an option of such obligor under a revolving
credit or similar agreement obligating the lender or lenders to extend credit
over a period of one (1) year or more) from, the date of the creation
thereof, PROVIDED that Funded Debt shall include, as at any date of
determination, Current Maturities of Funded Debt.
As used in this definition,
CURRENT MATURITIES OF FUNDED DEBT -- means, at any time and with
respect to any item of Funded Debt, the portion of such Funded Debt
outstanding at such time which by the terms of such Funded Debt or the
terms of any instrument or agreement relating thereto is due on demand
or within one (1) year from such time (whether by sinking fund, other
required prepayment or final payment at maturity) and is not directly or
indirectly renewable, extendible or refundable at the option of the
obligor under an agreement or firm commitment in effect at such time to
a date one (1) year or more from such time.
GAAP -- means accounting principles as promulgated from time to time in
statements, opinions and pronouncements by the American Institute of
Certified Public Accountants and the Financial Accounting Standards Board and
in such statements, opinions and pronouncements of such other entities with
respect to financial accounting of for-profit entities as shall be accepted
by a substantial segment of the accounting profession in the United States of
America.
GOVERNMENTAL AUTHORITY -- means:
(a) the government of
(i) the United States of America and any state or other
political subdivision thereof, or
(ii) any other jurisdiction (A) in which any Managing
General Partner, the Parent, the Company or any other Subsidiary
conducts all or any part of its business or (B) that asserts
jurisdiction over the conduct of the affairs or Properties of
any Managing General Partner, the Parent, the Company or any
other Subsidiary; and
U.S. RESTAURANT PROPERTIES OPERATING L.P. 55 NOTE PURCHASE AGREEMENT
(b) any entity exercising executive, legislative, judicial,
regulatory or administrative functions of, or pertaining to, any such
government.
GUARANTIED OBLIGATIONS -- Section 10.1.
GUARANTORS -- the introductory sentence.
GUARANTY -- means, with respect to any Person (for the purposes of this
definition, the "SUBJECT GUARANTOR"), any obligation (except the endorsement
in the ordinary course of business of negotiable instruments for deposit or
collection) of the Subject Guarantor guaranteeing or in effect guaranteeing
any indebtedness, dividend or other obligation of any other Person (the
"PRIMARY OBLIGOR") in any manner, whether directly or indirectly, including,
without limitation, obligations incurred through an agreement, contingent or
otherwise, by the Subject Guarantor:
(a) to purchase such indebtedness or obligation or any Property
constituting security therefor;
(b) to advance or supply funds
(i) for the purpose of payment of such indebtedness or
obligation, or
(ii) to maintain working capital or other balance sheet
condition or any income statement condition of the Primary Obligor or
otherwise to advance or make available funds for the purchase or
payment of such indebtedness or obligation;
(c) to lease Property or to purchase Securities or other Property
or services primarily for the purpose of assuring the owner of such
indebtedness or obligation of the ability of the Primary Obligor to make
payment of the indebtedness or obligation; or
(d) otherwise to assure the owner of the indebtedness or obligation
of the Primary Obligor against loss in respect thereof.
For purposes of computing the amount of any Guaranty in connection with any
computation of indebtedness or other liability, it shall be assumed that the
indebtedness or other liabilities that are the subject of such Guaranty are
direct obligations of the issuer of such Guaranty.
HAZARDOUS SUBSTANCES -- means any and all pollutants, contaminants,
toxic or hazardous wastes and any other substances that might pose a hazard
to health or safety, the removal of which may be required or the generation,
manufacture, refining, production, processing, treatment, storage, handling,
transportation, transfer, use, disposal, release, discharge, spillage,
seepage or filtration of which is or shall be, in each of the foregoing
cases, restricted, prohibited or penalized by any applicable law.
INSTITUTIONAL INVESTOR -- means the Purchasers, any affiliate of any of
the Purchasers and any holder or beneficial owner of Notes that is an
"accredited investor" as defined in section 2(15) of the Securities Act.
INTERCREDITOR/COLLATERAL AGENCY AGREEMENT -- Section 3.9.
INTEREST RATE SWAPS -- means, with respect to any Person, any agreements or
other arrangements constituting interest rate swaps or xxxxxx entered into from
time to time by such Person.
U.S. RESTAURANT PROPERTIES OPERATING L.P. 56 NOTE PURCHASE AGREEMENT
INVESTMENT -- means any investment, made in cash or by delivery of
Property, by the Parent, the Company or any other Subsidiary:
(a) in any Person, whether by acquisition of stock, indebtedness or
other obligation or security, or by loan, Guaranty, advance, capital
contribution or otherwise; or
(b) in any Property.
Investments shall be valued at cost less any net return of capital through
the sale or liquidation thereof or other return of capital thereon.
INVESTMENT GRADE NOTICE -- Section 4.4(a).
INVESTMENT GRADE PREPAYMENT DATE -- Section 4.4(a).
IRC -- means the Internal Revenue Code of 1986, together with all rules and
regulations promulgated pursuant thereto, as amended from time to time.
IRS -- means the Internal Revenue Service of the United States of
America and any successor agency.
LEASEHOLD PROPERTY LEASES -- means and includes the leasehold property
leases identified on PART 2.4(C) OF ANNEX 3 all other leases evidencing any
interest of the Company or any other Subsidiary in real Property consisting
of a lessee's leasehold interest therein.
LIEN -- means any interest in Property securing an obligation owed to,
or a claim by, a Person other than the owner of the Property, whether such
interest is based on the common law, statute or contract, and including, but
not limited to, the security interest lien arising from a mortgage,
encumbrance, pledge, conditional sale, sale with recourse or a trust receipt,
or a lease, consignment or bailment for security purposes. The term "Lien"
includes, without limitation, reservations, exceptions, encroachments,
easements, rights-of-way, covenants, conditions, restrictions, leases and
other title exceptions and encumbrances affecting real Property and includes,
without limitation, with respect to stock, stockholder agreements, voting
trust agreements, buy-back agreements and all similar arrangements. For the
purposes hereof, the Parent, the Company and each other Subsidiary shall be
deemed to be the owner of any Property that it shall have acquired or holds
subject to a conditional sale agreement, Capital Lease or other arrangement
pursuant to which title to the Property has been retained by or vested in
some other Person for security purposes, and such retention or vesting is
deemed a Lien. The term "Lien" does not include negative pledge clauses in
agreements relating to the borrowing of money.
LINCOLN -- the introductory sentence.
MAKE-WHOLE AMOUNT -- means, with respect to Prepaid Principal and the date
the prepayment thereof is due (the "PREPAYMENT DATE"), the greater of
(a) Zero Dollars ($0), or
(b) an amount equal to the Present Value of the Prepaid Cash Flows
determined in respect of such Prepaid Principal as of such Prepayment Date
MINUS the amount of such Prepaid Principal.
As used in this definition,
PREPAID PRINCIPAL -- means any portion of the principal amount of any
Debt being paid for any reason (including, without limitation,
acceleration, optional prepayment or mandatory prepayment required because
of the occurrence of a contingency) prior to its regularly scheduled
maturity date.
U.S. RESTAURANT PROPERTIES OPERATING L.P. 57 NOTE PURCHASE AGREEMENT
PRESENT VALUE OF THE PREPAID CASH FLOWS -- means, with respect to any
Prepaid Principal, the sum of the present values of the then remaining
scheduled payments of principal and interest that would have been payable
in respect of such Prepaid Principal but that are no longer payable as a
result of the early prepayment of such Prepaid Principal. In determining
such present values,
(i) the amount of interest accrued through and including the
day immediately preceding such Prepayment Date on such Prepaid
Principal since the scheduled interest payment date immediately
preceding such Prepayment Date shall be deducted from the first of
such payments of interest, and
(ii) a discount rate equal to the Make-Whole Discount Rate
determined with respect to such Prepaid Principal and such Prepayment
Date DIVIDED by four (4), and a discount period of three (3) months of
thirty (30) days each, shall be used.
MAKE-WHOLE DISCOUNT RATE -- means fifty one-hundredths percent (0.50%)
PER ANNUM PLUS the PER ANNUM percentage rate (rounded to the nearest three
(3) decimal places) equal to the bond equivalent yield to maturity derived
from the Bloomberg Rate, or if the Bloomberg Rate is not then available,
the Applicable H.15 Rate determined as of the date that is two (2) Business
Days prior to such Prepayment Date.
APPLICABLE H.15 -- means, at any time, the United States Federal
Reserve Statistical Release H.15(519) then most recently published and
available to the public, or if such publication is not available, then any
other source of current information in respect of interest rates on
securities of the United States of America that is generally available and,
in the judgment of the Required Holders, provides information reasonably
comparable to the H.15(519) report.
APPLICABLE H.15 RATE -- means, at any time with respect to any Prepaid
Principal, the then most current annual yield to maturity of the
hypothetical United States Treasury obligation listed in the Applicable
H.15 with a Treasury Constant Maturity (as such term is defined in such
Applicable H.15) equal to the Weighted Average Life to Maturity of such
Prepaid Principal. If no such United States Treasury obligation with a
Treasury Constant Maturity corresponding exactly to such Weighted Average
Life to Maturity is listed, then the yields for the two (2) then most
current hypothetical United States Treasury obligations with Treasury
Constant Maturities most closely corresponding to such Weighted Average
Life to Maturity (one (1) with a longer maturity and one (1) with a
shorter maturity, if available) shall be calculated pursuant to the
immediately preceding sentence and the Make-Whole Discount Rate shall be
interpolated or extrapolated from such yields on a straight-line basis.
BLOOMBERG RATE -- means, with respect to any Prepayment Date and
Prepaid Principal, the PER ANNUM yield reported on Page "UST" on the
Bloomberg Financial Market Service (or such other display as may replace
Page UST on the Bloomberg Financial Market Service) at 10:00 a.m. (New
York time) on the second (2nd) Business Day preceding such Prepayment
Date for United States government Securities having a maturity (rounded
to the nearest month) corresponding to the Weighted Average Life to
Maturity of such Prepaid Principal.
WEIGHTED AVERAGE LIFE TO MATURITY -- means, with respect to any
Prepayment Date and Prepaid Principal, the number of years obtained by
DIVIDING the Remaining Dollar-Years of such Prepaid Principal by such
Prepaid Principal, determined as of such Prepayment Date.
U.S. RESTAURANT PROPERTIES OPERATING L.P. 58 NOTE PURCHASE AGREEMENT
REMAINING DOLLAR-YEARS -- means the result obtained by
(a) MULTIPLYING, in the case of each then remaining scheduled
payment of principal that would have been payable in respect of
Prepaid Principal but is no longer payable as a result of the
prepayment of such Prepaid Principal,
(i) an amount equal to such scheduled payment of
principal, by
(ii) the number of years (calculated to the nearest
one-twelfth) that will elapse between such Prepayment Date and
the date such scheduled principal payment would be due if such
Prepaid Principal had not been so prepaid, and
(b) calculating the sum of each of the products obtained in
the preceding subsection (a).
MANAGING GENERAL PARTNER -- means with respect to the Company and the
Parent, U.S Restaurant Properties, Inc., a Delaware corporation, and its
successors and assigns, and with respect to each other Guarantor that is a
limited partnership, the Person listed as such opposite such Guarantor on
PART 9.1(B) OF ANNEX 3, and their respective successors and assigns.
MARGIN SECURITY -- means "margin stock" within the meaning of
Regulations G, T and X of the Board of Governors of the Federal Reserve
System, 12 C.F.R., Chapter II, as amended from time to time.
MATERIAL ADVERSE EFFECT -- means a material adverse effect on
(a) the business, prospects, profits, Properties or condition
(financial or otherwise) of the Parent, the Company and the other
Subsidiaries, taken as a whole, or any Managing General Partner;
(b) the ability of the Company to perform any of its obligations set
forth in this Agreement, the Notes or any of the other Financing Documents,
(c) the ability of any Guarantor to perform its respective
obligations set forth in this Agreement, the Notes or any of the other
Financing Documents, or
(d) the validity or enforceability of this Agreement, the Notes or
any of the other Financing Documents.
MORTGAGES AND ASSIGNMENTS OF RENTS -- means such mortgages, deeds of
trust and assignments of leases and rents, substantially in the applicable
form attached hereto as Exhibit F, pursuant to which the Company, any of the
Guarantors or any other Subsidiary collaterally assigns to the Collateral
Agent, for the benefit of the Banks and the holders of the Notes, the leases
described in PART 2.4(C) OF ANNEX 3 and all other interests in real Property
now or hereafter possessed or owned by the Company, the Guarantors or any
other Subsidiary.
MULTIEMPLOYER PLAN -- means any "multiemployer plan" (as defined in
section 3(37) of ERISA) in respect of which the Parent or any ERISA Affiliate
is an "employer" (as such term is defined in section 3 of ERISA).
NET PROCEEDS AMOUNT -- means, with respect to any Transfer of any Property
by any Person, an amount equal to the DIFFERENCE of
(a) the aggregate amount of the consideration (valued at the Fair
Market Value of such consideration at the time of the consummation of such
Transfer) received by such Person in respect of such Transfer, MINUS
U.S. RESTAURANT PROPERTIES OPERATING L.P. 59 NOTE PURCHASE AGREEMENT
(b) all ordinary and reasonable out-of-pocket costs and expenses
actually incurred by such Person in connection with such Transfer.
NET PROCEEDS OF PARTNERSHIP INTERESTS -- means, with respect to any period
and any Person, cash proceeds (net of all costs and out-of-pocket expenses in
connection therewith, including, without limitation, placement, underwriting and
brokerage fees and expenses), received by such Person during such period, from
the sale of all limited partnership interests and other equity interests of such
Person.
XXXXXX -- the introductory sentence.
NOTE PURCHASE AGREEMENTS -- Section 1.2(c).
NOTES -- Section 1.1(b).
OPERATING LEASE -- means any lease which is not a Capital Lease.
OTHER NOTE PURCHASE AGREEMENTS -- Section 1.2(c).
OTHER PURCHASERS -- Section 1.2(c).
PARENT -- the introductory sentence.
PARENT PARTNERSHIP AGREEMENT -- means that certain Second Amended and
Restated Agreement of Limited Partnership of U.S. Restaurant Properties
Master L.P. (formerly Burger King Investors Master L.P.), dated as of March 17,
1995, without giving effect to any amendment thereto.
PARENT PARTNERSHIP CERTIFICATE -- means the Certificate of Limited
Partnership of Burger King Investors Master L. P. filed with the Secretary of
State of the State of Delaware on December 10, 1985, (a) the Amendment to the
Certificate of Limited Partnership filed with such Secretary of State on July
7, 1994, (b) the Amendment to the Certificate of Limited Partnership filed
with such Secretary of State on November 7, 1994, (c) the Amendment to the
Certificate of Limited Partnership filed with such Secretary of State on
November 30, 1994, and (d) the Amendment to the Certificate of Limited
Partnership filed with such Secretary of State on June 17, 1996.
PARTNERSHIP AGREEMENTS -- means the Company Partnership Agreement, the
Parent Partnership Agreement and, each of the partnership agreements of each
Guarantor described on PART 9.1(B) OF ANNEX 3.
PBGC -- means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor thereto.
PENSION PLAN -- means, at any time, any "employee pension benefit plan"
(as such term is defined in section 3 of ERISA) maintained at such time by
the Parent or any ERISA Affiliate for employees of the Parent or such ERISA
Affiliate, excluding any Multiemployer Plan.
PERMITTED MANAGEMENT TRANSFEREE -- means: (i) each of Xxxxxx X. Xxxxxxx
and Xxxx X. Xxxxxxxx or (ii) related Persons constituting a "group" (as such
term is used in Rule 13d-5 under the Exchange Act as in effect on the Closing
Date) which includes, and is controlled by, each of Xxxxxx X. Xxxxxxx and
Xxxx X. Xxxxxxxx.
PERMITTED REIT CONVERSION -- means any transaction by which the Parent
or an Affiliate (such Affiliate herein referred to as the "REIT PARTY")
qualifies as a REIT (as contemplated by Sections 856 through 860 of the IRC)
so long as (a) after giving effect to such qualification each of Xxxxxx X.
Xxxxxxx and Xxxx X. Xxxxxxxx shall have been elected by the directors of such
REIT to manage the affairs and Properties of such REIT and to perform
functions substantially similar to those performed by a chief executive
officer and a chief financial officer, (b) after giving effect to such
qualification, the Parent, the Company
U.S. RESTAURANT PROPERTIES OPERATING L.P. 60 NOTE PURCHASE AGREEMENT
and each Guarantor remain fully liable in all respects under each of the
Financing Documents to which it was a party immediately prior to such
qualification, (c) if such REIT is not the Parent, the Company shall have
elected that such REIT be the REIT Party upon compliance with the provisions
of Section 6.11 and (c) immediately prior to, and after giving effect to,
such qualification no Default or Event of Default exists or would exist.
PERMITTED OTHER SECURED OBLIGATION -- means, at any time, any Debt or
obligations of the Parent or any Subsidiary which, in each case, is secured by
a Lien so long as the SUM (without duplication) of
(a) the aggregate amount of all Debt and other obligations
(including, without limitation, obligations of the type described in clause
(ii) of Section 6.9(a)) secured by Liens (other than Debt or obligations
secured by Liens permitted pursuant to each clause of Section 6.9(a) other
than clause (ii) and clause (x) thereof) at such time, PLUS,
(b) the aggregate amount of Total Subsidiary Funded Debt outstanding
at such time
does not exceed 15% of Consolidated Partners' Capital at such time.
PERSON -- means an individual, sole proprietorship, partnership,
corporation, limited liability company, association, trust, business trust,
joint venture, unincorporated organization, or a government or agency or
political subdivision thereof.
PLACEMENT AGENTS -- means SPP Hambro & Co., LLC and Comerica Bank.
PLACEMENT MEMORANDUM -- means the Confidential Direct Placement
Memorandum, dated October 1996, prepared by the Placement Agents (together
with all exhibits, annexes, amendments and supplements thereto).
PREFERRED STOCK -- means, in respect of any corporation or other entity,
shares of the capital stock or other equity interests of such corporation or
other entity that are entitled to preference or priority over any other
shares of the capital stock or other equity interests of such corporation in
respect of payment of dividends (or other payments which are the equivalent
thereof) or distribution of assets upon liquidation.
PRO FORMA FINANCIAL INFORMATION -- Section 2.2(d).
PROPERTIES DEVELOPMENT -- the introductory sentence.
PROPERTY -- means any interest in any kind of property or asset, whether
real, personal or mixed, and whether tangible or intangible.
PROPERTY REINVESTMENT APPLICATION -- means, with respect to any Transfer
of Property, the application of an amount equal to the Net Proceeds Amount
with respect to such Transfer to the acquisition by the Parent, the Company
or any other Subsidiary of operating assets of the Parent, the Company or any
other Subsidiary to be used in the ordinary course of business of such Person
and which shall are of a similar nature and have a value equivalent to the
Property subject to such Transfer.
PROPOSED CONTROL PREPAYMENT DATE -- Section 4.3(a).
PURCHASERS -- means you and the Other Purchasers.
REIT -- means a Real Estate Investment Trust.
U.S. RESTAURANT PROPERTIES OPERATING L.P. 61 NOTE PURCHASE AGREEMENT
REIT PARTY -- has the meaning assigned to such term in the definition of
"Permitted REIT Conversion" in this Section 9.1.
RENOVATION PARTNERS -- the introductory sentence.
REQUIRED HOLDERS -- means, at any time, the holders of at least
sixty-two and one-half percent (62-1/2%) in principal amount of the Notes at
the time outstanding (exclusive of Notes then owned by any one or more of the
Parent, the Company, any other Subsidiary and any Affiliate).
RESTAURANT OPERATOR LEASES -- means and includes each restaurant operator
lease identified on PART 2.4(C) OF ANNEX 3 and all other leases evidencing
any interest of the Company or any other Subsidiary in real Property
consisting of a lessor's leasehold interest therein.
SECURITIES ACT -- means the Securities Act of 1933, as amended from time
to time.
SECURITY -- means "security" as defined in section 2(1) of the Securities
Act.
SECURITY DOCUMENTS -- means each of the Mortgages and Assignments of Rents
and each other document delivered to the Purchasers pursuant to Section 3.11 and
Section 6.11.
SENIOR FINANCIAL OFFICER -- means, so long as U.S. Restaurant Properties,
Inc. is responsible for the management of the Parent and the Company, the
chief financial officer, the principal accounting officer, the treasurer or
the controller of such Person and, otherwise, the individual or individuals
performing the functions normally considered to be performed by the chief
financial officer, the principal accounting officer, the treasurer or the
controller of the Parent and the Company, respectively, assuming the Parent
and the Company were corporations.
SENIOR FUNDED DEBT -- means (a) any Funded Debt of the Parent (other than
Subordinated Debt) and (b) any Funded Debt of the Company or any Subsidiary.
SENIOR OFFICER -- means, with respect to any Person, the individual or
individuals performing the functions normally considered to be performed by
the chief executive officer, the chief financial officer, the president, the
treasurer, the controller or the secretary of such Person, assuming, in respect
of any Person which is not a corporation, that such Person is a corporation.
SERIES -- means any or all of either series of Notes issued hereunder.
SERIES A NOTES -- Section 1.1(a).
SERIES B NOTES -- Section 1.1(b).
STANDARD & POOR'S -- means Standard & Poor's Corporation.
SUBORDINATED DEBT -- means any Debt that is in any manner subordinated in
right of payment or security in any respect to Debt evidenced by the Notes.
SUBSIDIARY -- means
(a) the Company,
(b) (i) any other corporation, association, business trust or
other business entity (other than for all purposes herein, including
the calculation of the financial covenants in Section 6.4 through
Section 6.6, inclusive, the Excluded Securitization Subsidiary) in
which the Parent, the Company or one or more of the other Subsidiaries
(either individually or collectively) owns sufficient
U.S. RESTAURANT PROPERTIES OPERATING L.P. 62 NOTE PURCHASE AGREEMENT
equity, voting interests or other contractual rights to enable it or
them ordinarily, in the absence of contingencies, to elect a majority
of the directors (or Persons performing similar functions) of such
entity or effectively control the business, Properties or affairs of
such entity, and
(ii) any partnership or joint venture if more than a 50%
interest in the profits or capital thereof is owned by the Parent, the
Company or one or more of the other Subsidiaries (either individually
or collectively, unless such partnership can and does ordinarily take
major business actions without the prior approval of the Parent, the
Company or one or more of the other Subsidiaries), and
(c) at all times from and after the Permitted REIT Conversion and
for all purposes herein (including, without limitation, in connection with
financial statements and information required to be delivered by Section
7.1), if such Person is not the Parent or the Company, the REIT Party.
SUBSIDIARY STOCK -- means, with respect to any Subsidiary, the stock or
other equity interests of such Subsidiary (or any options or warrants to
purchase stock, other equity interests or other Securities exchangeable for
or convertible into stock or other equity interests) of such Subsidiary.
SUCCESSOR ENTITY -- Section 6.7(a).
TRANSFER -- means, with respect to any Person, any transaction in which
such Person sells, conveys, transfers or leases (as lessor) any of its
Property, including, without limitation, Subsidiary Stock. For purposes of
determining the application of the Net Proceeds Amount in respect of any
Transfer, the Parent may designate any Transfer as one or more separate
Transfers each yielding a separate Net Proceeds Amount. In any such case,
the Disposition Value of any Property subject to each such separate Transfer
shall be determined by ratably allocating the aggregate Disposition Value of
all Property subject to all such separate Transfers to each such separate
Transfer on a proportionate basis.
TOTAL SUBSIDIARY FUNDED DEBT -- means, at any time, (without duplication)
(a) the aggregate Funded Debt of all Subsidiaries outstanding at
such time, and
(b) the aggregate amount of claims in respect of the redemption of,
and accumulated, unpaid dividends on, all Preferred Stock (and other equity
Securities and all other Securities convertible into, exchangeable for, or
representing the right to purchase, Preferred Stock) of all Subsidiaries
outstanding at such time (whether or not any right of redemption or
conversion is exercisable by the holder thereof at such time),
determined, in each case, on a combined basis for such Persons, but excluding
from such calculation (i) any such Funded Debt of the Company evidenced by
the Notes and the Bank Credit Agreement, (ii) any such Funded Debt of any
Subsidiary (other than the Company) in respect of the Unconditional Guaranty
or any Guaranty of any of the Funded Debt specified in clause (i) hereof, and
(iii) all such Preferred Stock and other equity Securities which are legally
and beneficially owned by the Parent, the Company or any Wholly-Owned
Subsidiary.
UNCONDITIONAL GUARANTY -- Section 10.1.
UNENCUMBERED ASSET RATIO -- means, as of any date of determination, the
RATIO of
(a) the total of all assets of the Parent, the Company and the other
Subsidiaries not subject to any Lien securing Debt and which would
U.S. RESTAURANT PROPERTIES OPERATING L.P. 63 NOTE PURCHASE AGREEMENT
be shown as assets on a consolidated balance sheet for such Persons at
such time prepared in accordance with GAAP, TO
(b) the total of all Debt of the Parent, the Company and the other
Subsidiaries not secured by a Lien and outstanding on such date, after
eliminating all offsetting debits and credits among the Parent, the Company
and the other Subsidiaries and all other items required to be eliminated in
the course of the preparation of consolidated financial statements of the
Parent, the Company and the other Subsidiaries in accordance with GAAP.
VOTING UNITS -- means, with respect to any Person,
(a) at any time that such Person is a corporation, the capital stock
of any class or classes of such Person the holders of which are ordinarily,
in the absence of contingencies, entitled to vote in the election of
corporate directors, and
(b) at any time that such Person is a partnership, joint venture or
similar entity, the capital interest or profits interest of such Person,
and
(c) at any time that such Person is a limited liability company, the
membership interests of such Person, and
(d) at any time that such Person is a trust, business trust,
association or other unincorporated organization, the beneficial interest
of such Person.
WEST VIRGINIA PARTNERS -- the introductory sentence.
WHOLLY-OWNED SUBSIDIARY -- means any Subsidiary all of the equity interests
(except director's qualifying shares) and voting interests of which are owned by
any one or more of the Parent, the Company and the other Wholly-Owned
Subsidiaries.
9.2 GAAP.
Where the character or amount of any asset or liability or item of
income or expense, or any consolidation or other accounting computation is
required to be made for any purpose hereunder, it shall be done in accordance
with GAAP as in effect on the date of, or at the end of the period covered
by, the financial statements from which such asset, liability, item of income,
or item of expense is derived, or, in the case of any such computation, as in
effect on the date as of which such computation is required to be determined,
PROVIDED, that if any term defined herein includes or excludes amounts, items
or concepts that would not be included in or excluded from such term if such
term was defined with reference solely to GAAP, such term will be deemed to
include or exclude such amounts, items or concepts as set forth herein.
9.3 DIRECTLY OR INDIRECTLY.
Where any provision herein refers to action to be taken by any Person, or
that such Person is prohibited from taking, such provision shall be applicable
whether such action is taken directly or indirectly by such Person, including
actions taken by or on behalf of any partnership in which such Person is a
general partner.
9.4 SECTION HEADINGS AND TABLE OF CONTENTS AND CONSTRUCTION.
(a) SECTION HEADINGS AND TABLE OF CONTENTS, ETC. The titles of the
Sections of this Agreement, the Annexes and the Table of Contents of this
Agreement appear as a matter of convenience only, do not constitute
U.S. RESTAURANT PROPERTIES OPERATING L.P. 64 NOTE PURCHASE AGREEMENT
a part of this Agreement and shall not affect the construction hereof.
The words "herein," "hereof," "hereunder" and "hereto" refer to this
Agreement as a whole and not to any particular Section or other
subdivision. References to Sections are, unless otherwise specified,
references to Sections of this Agreement. References to Annexes and
Exhibits are, unless otherwise specified, references to Annexes and
Exhibits attached to this Agreement.
(b) CONSTRUCTION. Each covenant contained herein shall be construed
(absent an express contrary provision herein) as being independent of each
other covenant contained herein, and compliance with any one covenant shall
not (absent such an express contrary provision) be deemed to excuse
compliance with one or more other covenants.
9.5 GOVERNING LAW.
THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
9.6 GENERAL INTEREST PROVISIONS.
It is the intention of the Company and the Purchaser to conform strictly
to the Applicable Interest Law (as defined below). Accordingly, it is agreed
that, notwithstanding any provisions to the contrary in this Agreement or in
the Notes, the aggregate of all interest, and any other charges or
consideration constituting interest under the Applicable Interest Law that is
taken, reserved, contracted for, charged or received pursuant to this
Agreement or the Notes shall under no circumstances exceed the maximum amount
of interest allowed by the Applicable Interest Law. If any such excess
interest is ever charged, received or collected on account of or relating to
this Agreement and the Notes (including any charge or amount which is not
denominated as "interest" but is legally deemed to be interest under
Applicable Interest Law), then in such event
(a) the provisions of this Section 9.6 shall govern and control,
(b) the Company shall not be obligated to pay the amount of such
interest to the extent that it is in excess of the maximum amount of
interest allowed by the Applicable Interest Law,
(c) any excess shall be deemed a mistake and cancelled automatically
and, if theretofore paid, shall be credited to the principal amount of the
Notes by the holders thereof, and if the principal balance of the Notes is
paid in full, any remaining excess shall be forthwith paid to the Company,
and
(d) the effective rate of interest shall be automatically subject
to reduction to the Maximum Legal Rate of Interest (as defined below).
If at any time thereafter, the Maximum Legal Rate of Interest is increased
then, to the extent that it shall be permissible under the Applicable
Interest Law, the Company shall forthwith pay to the holders of the Notes, on
a PRO RATA basis, all amounts of such excess interest that the holders of the
Notes would have been entitled to receive pursuant to the terms of this
Agreement and the Notes had such increased Maximum Legal Rate of Interest
been in effect at all times when such excess interest accrued. To the extent
permitted by the Applicable Interest Law, all sums paid or agreed to be paid
to the holders of the Notes for the use, forbearance or detention of the
indebtedness evidenced thereby shall be amortized, prorated, allocated and
spread throughout the full term of the Notes. For purposes of this Section
9.6, "APPLICABLE INTEREST LAW" shall mean any present or future law
(including, without limitation, the law of the United States of America)
which has application to the interest and other charges pursuant to this
Agreement and the Notes, PROVIDED THAT, THE FOREGOING NOTWITHSTANDING, THE
PARTIES HERETO SELECT, TO THE EXTENT THEY MAY LAWFULLY DO SO, THE INTERNAL
LAWS OF THE STATE OF NEW YORK AS THE LAW WHICH HAS APPLICATION
U.S. RESTAURANT PROPERTIES OPERATING L.P. 65 NOTE PURCHASE AGREEMENT
TO SUCH INTEREST AND OTHER CHARGES, and the "MAXIMUM LEGAL RATE OF INTEREST"
shall mean the maximum rate of interest that a holder of Notes may from time
to time legally charge the Company by agreement and in regard to which the
Company would be prevented successfully from raising the claim or defense of
usury under the Applicable Interest Law as now or hereafter construed by
courts having appropriate jurisdiction.
10. GUARANTY AND OTHER RIGHTS AND UNDERTAKINGS
10.1 GUARANTIED OBLIGATIONS.
The Parent, Business Trust I, Business Trust II, West Virginia Partners,
Renovation Partners, Properties Development, Xxxxxxx, Xxxxxx and Carolina, in
consideration of the execution and delivery of this Agreement and the other
Financing Documents and the purchase of the Notes by you, hereby irrevocably,
unconditionally, absolutely, jointly and severally guarantee to each holder of
Notes, as and for each such Guarantor's own debt, until final and indefeasible
payment has been made:
(a) the due and punctual payment by the Company of the principal of,
and interest, and the Make-Whole Amount (if any) on, the Notes at any time
outstanding and the due and punctual payment of all other amounts payable,
and all other indebtedness owing, by the Company to the holders of the
Notes under this Agreement, the Notes and the other Financing Documents
(all such obligations so guarantied are herein collectively referred to
as the "GUARANTIED OBLIGATIONS"), in each case when and as the same shall
become due and payable, whether at maturity, pursuant to mandatory or
optional prepayment, by acceleration or otherwise, all in accordance with
the terms and provisions hereof and thereof; it being the intent of the
Guarantors that the guaranty set forth in this Section 10.1 (the
"UNCONDITIONAL GUARANTY") shall be a guaranty of payment and not a guaranty
of collection; and
(b) the punctual and faithful performance, keeping, observance, and
fulfillment by the Company of all duties, agreements, covenants and
obligations of the Company contained in this Agreement, the Notes and the
other Financing Documents.
10.2 PERFORMANCE UNDER THIS AGREEMENT.
In the event the Company fails to make, on or before the due date
thereof, any payment of the principal of, or interest or the Make-Whole
Amount (if any) on, the Notes or of any other amounts payable, or any other
indebtedness owing, to the holders of the Notes under this Agreement, any of
the Notes or any of the other Financing Documents or if the Company shall
fail to perform, keep, observe, or fulfill any other obligation referred to
in clause (a) or clause (b) of Section 10.1 in the manner provided in the
Notes or in this Agreement after in each case giving effect to any applicable
grace periods or cure provisions or waivers or amendments, each of the
Guarantors shall cause forthwith to be paid the moneys, or to be performed,
kept, observed, or fulfilled each of such obligations, in respect of which
such failure has occurred in accordance with the terms and provisions of this
Agreement and the Notes. In furtherance of the foregoing, if an Event of
Default shall exist, all of the Guarantied Obligations shall, in the manner
and subject to the limitations provided herein for the acceleration of the
Notes (including, without limitation, the provisions related to the annulment
thereof), forthwith become due and payable without notice, regardless of
whether the acceleration of the Notes shall be stayed, enjoined, delayed or
otherwise prevented.
10.3 WAIVERS.
To the fullest extent permitted by law, each Guarantor does hereby waive:
(a) notice of acceptance of the Unconditional Guaranty;
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(b) notice of any purchase of the Notes under this Agreement, or the
creation, existence or acquisition of any of the Guarantied Obligations,
subject to such Guarantor's right to make inquiry of each holder of Notes
to ascertain the amount of the Guarantied Obligations at any reasonable
time;
(c) notice of the amount of the Guarantied Obligations, subject to
such Guarantor's right to make inquiry of each holder of Notes to ascertain
the amount of the Guarantied Obligations at any reasonable time;
(d) notice of adverse change in the financial condition of the
Company or any other fact that might increase or expand such Guarantor's
risk hereunder;
(e) notice of presentment for payment, demand, protest, and notice
thereof as to the Notes or any other instrument;
(f) notice of any Default or Event of Default;
(g) all other notices and demands to which such Guarantor might
otherwise be entitled (except if such notice or demand is specifically
otherwise required to be given to such Guarantor pursuant to the terms of
this Agreement);
(h) the right by statute or otherwise to require you or any other
holder of Notes to institute suit against the Company or any other
Guarantor or to exhaust the rights and remedies of you or any other holder
of Notes against the Company or any other Guarantor, such Guarantor being
bound to the payment of each and all Guarantied Obligations, whether now
existing or hereafter accruing, as fully as if such Guarantied Obligations
were directly owing to you or the other holders of Notes by such Guarantor;
(i) any defense arising by reason of any disability or other defense
(other than the defense that the Guarantied Obligations shall have been
fully and finally performed and indefeasibly paid) of the Company or by
reason of the cessation from any cause whatsoever of the liability of the
Company in respect thereof, and any other defense that such Guarantor may
otherwise have against the Company or any holder of Notes;
(j) any stay (except in connection with a pending appeal),
valuation, appraisal, redemption or extension law now or at any time
hereafter in force which, but for this waiver, might be applicable to any
sale of Property of such Guarantor made under any judgment, order or decree
based on this Agreement, and such Guarantor covenants that it will not at
any time insist upon or plead, or in any manner claim or take the benefit
or advantage of such law; and
(k) any claim of any nature arising out of any right of indemnity,
contribution, reimbursement or any similar right, or any claim of
subrogation arising, in respect of any payment made under the Unconditional
Guaranty or in connection with the Unconditional Guaranty, against the
Company or the estate of the Company (including, without limitation, Liens
on the Property of the Company or the estate of the Company), in each case
if, but only if, and for so long as, the Company is the subject of any
proceeding brought under the Federal Bankruptcy Code or under the
applicable bankruptcy laws of any appropriate jurisdiction, whether now
or hereafter in effect, and further agrees that such Guarantor will not
file any claims against the Company or the estate of the Company in the
course of any such proceeding in respect of the rights referred to in this
clause (k), and further agrees that each holder of Notes may specifically
enforce the provisions of this clause (k).
U.S. RESTAURANT PROPERTIES OPERATING L.P. 67 NOTE PURCHASE AGREEMENT
10.4 CERTAIN WAIVERS OF SUBROGATION, REIMBURSEMENT AND INDEMNITY.
Each Guarantor hereby acknowledges and agrees that such Guarantor shall
not have any right of subrogation, reimbursement, or indemnity whatsoever in
respect of the Guarantied Obligations, and no right of recourse to or with
respect to any assets or Property of the Company. Nothing shall discharge or
satisfy the obligations of any Guarantor hereunder except the full and final
performance and indefeasible payment of the Guarantied Obligations.
10.5 RELEASES.
Each Guarantor consents and agrees that, without notice to or by such
Guarantor and without impairing, releasing, abating, deferring, suspending,
reducing, terminating or otherwise affecting the obligations of such Guarantor
hereunder, each holder of Notes, in the manner provided herein, by action or
inaction, may:
(a) compromise or settle, renew or extend the period of duration or
the time for the payment, or discharge the performance of, or may refuse
to, or otherwise not, enforce, or may, by action or inaction, release all
or any one or more parties to, any one or more of the Notes, this
Agreement or any of the other Financing Documents;
(b) assign, sell or transfer, or otherwise dispose of, any one or
more of the Notes;
(c) grant waivers, extensions, consents and other indulgences to the
Company or any other Guarantor in respect of any one or more of the Notes,
this Agreement or any of the other Financing Documents;
(d) amend, modify or supplement in any manner and at any time (or
from time to time) any one or more of the Notes, this Agreement or the
other Financing Documents in accordance with Section 11.5 or otherwise;
(e) release or substitute any one or more of the endorsers or
guarantors of the Guarantied Obligations whether parties hereto or not;
(f) sell, exchange, release or surrender any Property at any time
pledged or granted as security in respect of the Guarantied Obligations,
whether so pledged or granted by such Guarantor or another guarantor of
the Company's obligations under this Agreement, the Notes and the other
Financing Documents; and
(g) exchange, enforce, waive, or release, by action or inaction, any
security for the Guarantied Obligations or any other guaranty of any of the
Notes.
10.6 MARSHALING.
Each Guarantor consents and agrees that:
(a) you and each other holder of Notes shall be under no obligation
to marshal any assets in favor of such Guarantor or against or in payment
of any or all of the Guarantied Obligations; and
(b) to the extent any other Guarantor makes a payment or payments
to any holder of Notes, which payment or payments or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set
aside, or required, for any of the foregoing reasons or for any other
reason, to be repaid or paid over to a custodian, trustee, receiver, or
any other party under any bankruptcy law, common law, or equitable cause,
then to the extent of such payment or repayment, the obligation or part
thereof intended to be satisfied thereby shall be revived and continued in
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full force and effect as if said payment or payments had not been made and
such Guarantor shall be primarily liable for such obligation.
10.7 LIABILITY.
Each Guarantor agrees that the liability of such Guarantor in respect of
this Section 10 shall be immediate and shall not be contingent upon the
exercise or enforcement by you or any other holder of Notes of whatever
remedies you or such other holder may have against the Company or any other
Guarantor or the enforcement of any Lien or realization upon any security you
or such other holder may at any time possess.
10.8 PRIMARY OBLIGATION.
The Unconditional Guaranty set forth in this Section 10 is a primary and
original obligation of each Guarantor and is an absolute, unconditional,
continuing and irrevocable guaranty of payment and performance and shall
remain in full force and effect (except as set forth in Section 10.16) until
the full, final and indefeasible payment of the Guarantied Obligations
without respect to future changes in conditions, including, without
limitation:
(a) change of law or any invalidity or irregularity with respect to
the issuance or assumption of any obligations (including, without
limitation, the Notes) of or by any of the Company or any Guarantor, or
with respect to the execution and delivery of any agreement (including,
without limitation, the Notes and this Agreement) of or by any of the
Company or any Guarantor;
(b) any event or condition described in Section 10.5;
(c) the occurrence of any event or the existence of any condition
specified in Section 8.1(g), Section 8.1(h) or Section 8.1(i) with respect
to the Company or any other Guarantor;
(d) any change in the ownership of the Voting Units of the Company
or any Guarantor; or
(e) any other change or circumstance whatsoever.
10.9 ELECTION TO PERFORM OBLIGATIONS.
Any election by any Guarantor to pay or otherwise perform any of the
obligations of the Company under the Notes, this Agreement or any of the
other Financing Documents, whether pursuant to this Section 10 or otherwise,
shall not release the Company or any other Guarantor from such obligations or
any of such Person's other obligations under the Notes, this Agreement and
the other Financing Documents.
10.10 NO ELECTION.
You and each other holder of Notes shall, individually or collectively,
have the right to seek recourse against any Guarantor to the fullest extent
provided for herein for such Guarantor's obligations under this Agreement
(including, without limitation, this Section 10) in respect of the Notes. No
election to proceed in one form of action or proceeding, or against any
party, or on any obligation, shall constitute a waiver of such holder's right
to proceed in any other form of action or proceeding or against other parties
unless such holder has expressly waived such right in writing. Specifically,
but without limiting the generality of the foregoing, no action or proceeding
by you or any other holder of Notes against the Company or any Guarantor
under any document or instrument evidencing obligations of the Company or
such Guarantor to you or such other holder of Notes shall serve to diminish
the liability of any Guarantor under this Agreement (including, without
limitation, this Section 10) except to the extent that you or such other
holder of Notes finally and unconditionally
U.S. RESTAURANT PROPERTIES OPERATING L.P. 69 NOTE PURCHASE AGREEMENT
shall have realized payment by such action or proceeding, notwithstanding the
effect of any such action or proceeding upon such Guarantor's right of
subrogation against the Company.
10.11 SEVERABILITY.
Subject to the provisions of Section 8, each of the rights and remedies
granted under this Section 10 to you and each other holder of Notes in
respect of the Notes held by you or such other holder may be exercised by you
or such other holder without notice by you or such other holder to, or the
consent of or any other action by, any other holder of Notes.
10.12 OTHER ENFORCEMENT RIGHTS.
You and each other holder of Notes may proceed, as provided in Section
10.11, to protect and enforce the Unconditional Guaranty by suit or suits or
proceedings in equity, at law or in bankruptcy, and whether for the specific
performance of any covenant or agreement contained herein (including, without
limitation, in this Section 10) or in execution or aid of any power herein
granted; or for the recovery of judgment for the obligations hereby
guarantied or for the enforcement of any other proper, legal or equitable
remedy available under applicable law. You and each other holder of Notes
shall have, to the fullest extent permitted by law and this Agreement, a
right of set-off against any and all credits and any and all other Property
of each or all of the Guarantors, now or at any time whatsoever with, or in
the possession of, you or such other holder, or anyone acting for you or such
other holder, to ensure the full performance of any and all obligations of
such Guarantor hereunder.
10.13 DELAY OR OMISSION; NO WAIVER.
No course of dealing on the part of you or any other holder of Notes and
no delay or failure on the part of any such Person to exercise any right
hereunder (including, without limitation, this Section 10) shall impair such
right or operate as a waiver of such right or otherwise prejudice such
Person's rights, powers and remedies hereunder. Every right and remedy given
by the Unconditional Guaranty or by law to you or any other holder of Notes
may be exercised from time to time as often as may be deemed expedient by
such Person.
10.14 RESTORATION OF RIGHTS AND REMEDIES.
If you or any other holder of Notes shall have instituted any proceeding
to enforce any right or remedy under the Unconditional Guaranty, under any
Note held by you or such other holder of Notes, and such proceeding shall
have been dismissed, discontinued or abandoned for any reason, or shall have
been determined adversely to you or such other holder, then and in every such
case you and each such other holder, the Company and each Guarantor shall,
except as may be limited or affected by any determination (including, without
limitation, any determination in connection with any such dismissal) in such
proceeding, be restored severally and respectively to its respective former
positions hereunder and thereunder, and thereafter, subject as aforesaid, the
rights and remedies of you and such other holders of Notes shall continue as
though no such proceeding had been instituted.
10.15 CUMULATIVE REMEDIES.
No remedy under this Agreement (including, without limitation, this
Section 10) or the Notes is intended to be exclusive of any other remedy, but
each and every remedy shall be cumulative and in addition to any and every
other remedy given pursuant to this Agreement (including, without limitation,
this Section 10) or pursuant to the Notes.
U.S. RESTAURANT PROPERTIES OPERATING L.P. 70 NOTE PURCHASE AGREEMENT
10.16 SURVIVAL.
So long as the Guarantied Obligations shall not have been fully and finally
performed and indefeasibly paid, the obligations of each Guarantor under this
Section 10 shall survive the transfer and payment of any Note and the payment
in full of all the Notes.
10.17 NO SETOFF, COUNTERCLAIM OR OTHER DEDUCTION.
Except as otherwise required by law, each payment by each Guarantor shall
be made without setoff, counterclaim or other deduction.
10.18 SEPARATE INSTRUMENTS.
Notwithstanding that each of the Guarantors is a party to this Agreement,
each of the Guarantied Obligations of each Guarantor under this Section 10
shall be deemed to be contained in a separate instrument and any invalidity
or unenforceability of this Agreement in respect of any Guarantor shall have
no effect on the validity or enforceability of this Agreement in respect of
the other Guarantors.
11. MISCELLANEOUS
11.1 COMMUNICATIONS.
(a) METHOD; ADDRESS. All communications hereunder or under the
Notes shall be in writing and shall be delivered either by nationwide
overnight courier or by facsimile transmission (confirmed by delivery by
nationwide overnight courier sent on the day of the sending of such
facsimile transmission). Communications to the Company or any Guarantor
shall be addressed as set forth on Annex 2, or at such other address of
which the Company or such Guarantor shall have notified each holder of
Notes. Communications to the holders of the Notes shall be addressed as
set forth on Annex 1 by such holder, or at such other address of which
such holder shall have notified the Company or such Guarantor (and the
Company shall record such address in the register for the registration
and transfer of Notes maintained pursuant to Section 5.1).
(b) WHEN GIVEN. Any communication addressed and delivered as herein
provided shall be deemed to be received when actually delivered to the
address of the addressee (whether or not delivery is accepted) or received
by the telecopy machine of the recipient. Any communication not so
addressed and delivered shall be ineffective.
11.2 REPRODUCTION OF DOCUMENTS.
This Agreement, each of the other Financing Documents (other than the
Notes) and all documents relating hereto or thereto, including, without
limitation,
(a) consents, waivers and modifications that may hereafter be
executed,
(b) documents received by you at the closing of your purchase of the
Notes (except the Notes themselves), and
(c) financial statements, certificates and other information
previously or hereafter furnished to you or any other holder of Notes,
may be reproduced by any holder of Notes by any photographic, photostatic,
microfilm, micro-card, miniature photographic, digital or other similar
process and each holder of Notes may destroy any original document so
reproduced. The Company and the Guarantors agree and stipulate that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or
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administrative proceeding (whether or not the original is in existence and
whether or not such reproduction was made by such holder of Notes in the
regular course of business) and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Nothing in this Section 11.2 shall prohibit the Company, any Guarantor or any
holder of Notes from contesting the validity or the accuracy of any such
reproduction.
11.3 SURVIVAL.
All warranties, representations, certifications and covenants made by
the Company, the Parent or any Guarantor herein or in any certificate or
other instrument delivered by it or on its behalf hereunder shall be
considered to have been relied upon by you and shall survive the delivery to
you of the Notes regardless of any investigation made by you or on your
behalf. All statements in any such certificate or other instrument shall
constitute warranties and representations by the Company and any such
Guarantor hereunder. All payment obligations of the Company hereunder
(including, without limitation, reimbursement obligations in respect of
costs, expenses and fees of or incurred by the holders of the Notes), other
than the obligation to pay the principal of and interest and Make-Whole
Amount on the Notes, shall survive the payment or prepayment of the Notes and
the termination hereof.
11.4 SUCCESSORS AND ASSIGNS.
This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties hereto. The provisions hereof
are intended to be for the benefit of all holders, from time to time, of
Notes, and shall be enforceable by any such holder, whether or not an express
assignment to such holder of rights hereunder shall have been made by you or
your successor or assign. Anything contained in this Section 11.4
notwithstanding, the Company may not assign any of its respective rights,
duties or obligations hereunder or under any of the other Financing Documents
without the prior written consent of all holders of Notes. For purposes of
the avoidance of doubt, any holder of a Note shall be permitted to pledge or
otherwise xxxxx x Xxxx in and to such Note (including, without limitation,
pledging such Note to a trustee for the benefit of certain secured
noteholders pursuant to documents relating to the financing of such holder or
to one or more banks or other institutions providing financing in connection
with the purchase by such holder of such Note); PROVIDED, HOWEVER, that any
such pledgee or holder of a Lien shall not be considered a holder hereunder
until it shall have foreclosed upon such Note in accordance with applicable
law and informed the Company, in writing, of the same.
11.5 AMENDMENT AND WAIVER.
(a) REQUIREMENTS. This Agreement may be amended, and the observance
of any term hereof may be waived, with (and only with) the written consent
of the Company, the Guarantors and the Required Holders; PROVIDED that no
such amendment or waiver of any of the provisions of Section 1 through
Section 3 hereof, inclusive, or any defined term used therein, shall be
effective as to any holder of Notes unless consented to by such holder in
writing; and PROVIDED FURTHER that no such amendment or waiver shall,
without the written consent of the holders of all Notes (exclusive of
Notes held by the Parent, any Subsidiary or any Affiliate) at the time
outstanding:
(i) subject to Section 8, change the amount or time of any
prepayment or payment of principal or Make-Whole Amount or the rate or
time of payment of interest;
(ii) amend or waive the provisions of Section 4 or Section 8,
or amend or waive any defined term to the extent used therein;
(iii) amend the definition of "Required Holders;"
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(iv) amend this Section 11.5, or amend or waive any defined
term to the extent used herein;
(v) release any Guarantor from its respective obligations
hereunder; or
(vi) except as otherwise provided in Section 4.4, the
Intercreditor/Collateral Agency Agreement and the Security Documents,
release the Liens of the Collateral Agent in the Collateral.
The holder of any Note may specify that any such written consent executed
by it shall be effective only with respect to a portion of the Notes held
by it (in which case it shall specify, by dollar amount, the aggregate
principal amount of Notes with respect to which such consent shall be
effective) and in the event of any such specification such holder shall be
deemed to have executed such written consent only with respect to the
portion of the Notes so specified.
(b) SOLICITATION OF NOTEHOLDERS.
(i) SOLICITATION. Neither the Company, the Parent nor any
other Guarantor shall solicit, request or negotiate for or with
respect to any proposed waiver or amendment of any of the provisions
of this Agreement, the Notes or any of the other Financing Documents
unless each holder of the Notes (irrespective of the amount of Notes
then owned by it) shall be provided by the Company, the Parent or such
other Guarantor with sufficient information to enable it to make an
informed decision with respect thereto. Executed or true and correct
copies of any waiver or consent effected pursuant to the provisions of
this Section 11.5 shall be delivered by the Company to each holder of
outstanding Notes forthwith following the date on which the same shall
have been executed and delivered by all holders of outstanding Notes
required to consent or agree to such waiver or consent.
(ii) PAYMENT. Neither the Company, the Parent nor any other
Guarantor shall, directly or indirectly, pay or cause to be paid any
remuneration, whether by way of supplemental or additional interest,
fee or otherwise, or grant any security, to any holder of Notes as
consideration for or as an inducement to the entering into by any
holder of Notes of any waiver or amendment of any of the terms and
provisions of this Agreement or any of the other Financing Documents
unless such remuneration is concurrently paid, or security is
concurrently granted, on the same terms, ratably to the holders of all
Notes then outstanding.
(iii) SCOPE OF CONSENT. Any consent made pursuant to this
Section 11.5 by a holder of Notes that has transferred or has agreed
to transfer its Notes to the Parent, any Subsidiary or any Affiliate
and has provided or has agreed to provide such written consent as a
condition to such transfer shall be void and of no force and effect
except solely as to such holder, and any amendments effected or
waivers granted or to be effected or granted that would not have been
or would not be so effected or granted but for such consent (and the
consents of all other holders of Notes that were acquired under the
same or similar conditions) shall be void and of no force and effect,
retroactive to the date such amendment or waiver initially took or
takes effect, except solely as to such holder.
(c) BINDING EFFECT. Except as provided in Section 11.5(b)(iii)
hereof, any amendment or waiver consented to as provided in this Section
11.5 shall apply equally to all holders of Notes and shall be binding upon
them and upon each future holder of any Note and upon the Company, the
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Parent and the other Guarantors whether or not such Note shall have been
marked to indicate such amendment or waiver. No such amendment or waiver
shall extend to or affect any obligation, covenant, agreement, Default or
Event of Default not expressly amended or waived or impair any right
consequent thereon.
11.6 EXPENSES.
(a) The Company shall pay when billed the reasonable costs and
expenses (including reasonable attorneys' fees) incurred by the holders of
the Notes in connection with the consideration, negotiation, preparation or
execution of any amendments, waivers, consents, standstill agreements and
other similar agreements with respect hereto (whether or not any such
amendments, waivers, consents, standstill agreements or other similar
agreements are executed).
(b) At any time when the Company and/or any of the Guarantors and
the holders of Notes are conducting restructuring or workout negotiations
in respect hereof, or a Default or Event of Default exists, the Company
shall pay when billed the reasonable costs and expenses (including
reasonable attorneys' fees and the fees of professional advisors) incurred
by the holders of the Notes in connection with inspections made pursuant
to Section 7.4 and in connection with the assessment, analysis or
enforcement of any rights or remedies that are or may be available to the
holders of Notes.
(c) If the Company shall fail to pay when due any principal of, or
Make-Whole Amount or interest on, any Note, the Company shall pay to each
holder of Notes, to the extent permitted by law, such amounts as shall be
sufficient to cover the costs and expenses, including but not limited to
reasonable attorneys' fees, incurred by such holder in collecting any sums
due on such Notes.
11.7 ENVIRONMENTAL INDEMNITY.
Each of the Parent, the Company, the Guarantors and the Managing General
Partners covenants that, except for claims, losses, damages, response costs
or expenses caused by or contributed (to the extent of such contribution) to
by the grossly negligent or intentional misconduct of any holder of Notes or
the Collateral Agent, it will at all times, unconditionally, absolutely and
irrevocably, indemnify, hold harmless and defend each such holder and the
Collateral Agent and their respective successors and assigns from any and all
claims, losses, damages, response costs and expenses arising out of or in any
way relating to a breach and/or misrepresentation of any and/or all of the
environmental representations, warranties, certifications and/or covenants
set forth herein or in any of the Financing Documents, or in any way relating
to a breach or violation, or alleged breach or violation, of any one or more
of the Environmental Protection Laws, including, without limitation:
(a) claims of third parties (including, without limitation,
governmental agencies) for damages, penalties, response costs, injunctive
or other relief;
(b) costs of removal, treatment, disposal and restoration,
including, without limitation, reasonable fees of attorneys and experts,
costs of reporting the existence of hazardous materials to any governmental
agency and costs of preparing and/or causing to be prepared any and all
studies, tests, analyses and/or reports in connection with any
environmental matter; and
(c) any and all expenses or obligations incurred at, before and
after any trial or appeal therefrom, whether or not taxable as costs,
including, without limitation, reasonable attorneys' fees, witness fees,
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deposition costs, copying and telephone charges and other expenses, all of
which shall be paid by the Company when incurred.
Except for claims, losses, damages, response costs or expenses caused or
contributed (to the extent of such contribution) by the grossly negligent or
intentional misconduct of any holder of Notes or the Collateral Agent, the
representations, warranties, certifications and/or covenants contained herein
and the obligations of the Parent, the Company, the Guarantors and the
Managing General Partners to indemnify such holders and the Collateral Agent as
provided in this Section 11.7, including, without limitation, indemnification
for the expenses, damages, losses, costs, damages and liabilities referred to
above in this Section 11.7, shall survive the repayment of all amounts due
under the Financing Documents and the release and/or cancellation of any and
all of the Financing Documents, the foreclosure of any Liens on any Property
by such holders or the Collateral Agent and/or any third party, or the
conveyance thereof by deed in lieu of foreclosure.
11.8 WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION; ETC.
(a) WAIVER OF JURY TRIAL. The parties hereto voluntarily and
intentionally waive any right any of them may have to a trial by jury in
respect of any litigation arising out of, under or in connection with this
Agreement or any of the documents, agreements or transactions contemplated
hereby. Each of the Company, the Guarantors and the Managing General
Partners has reviewed the foregoing waivers with its legal counsel and has
knowingly and voluntarily waived its jury trial rights following
consultation with legal counsel. In the event of litigation, this
Agreement may be filed as written consent to a trial by the court.
(b) CONSENT TO JURISDICTION. Any suit, action or proceeding arising
out of or relating to this Agreement, or any of the documents, agreements
or transactions contemplated hereby or any action or proceeding to execute
or otherwise enforce any judgment in respect of any breach under this
Agreement or any document or agreement contemplated hereby may be brought
by such party in any federal district court located in New York City,
New York, or any New York state court located in New York City, New York
as such party may in its sole discretion elect, and by the execution and
delivery of this Agreement, the parties hereto irrevocably and
unconditionally submit to the non-exclusive IN PERSONAM jurisdiction of
each such court, and each of the parties hereto irrevocably waives and
agrees not to assert in any proceeding before any tribunal, by way of
motion, as a defense or otherwise, any claim that it is not subject to
the IN PERSONAM jurisdiction of any such court. In addition, each of
the parties hereto irrevocably waives, to the fullest extent permitted by
law, any objection that it may now or hereafter have to the laying of
venue in any suit, action or proceeding arising out of or relating to
this Agreement or any document, agreement or transaction contemplated
hereby brought in any such court, and hereby irrevocably waives any claim
that any such suit, action or proceeding brought in any such court
has been brought in an inconvenient forum.
(c) SERVICE OF PROCESS. Each party hereto irrevocably agrees that
process personally served, served by U.S. Registered mail or served in the
manner provided for notices in this Agreement, at the addresses provided
herein for notices, shall constitute, to the extent permitted by law,
adequate service of process in any suit, action or proceeding arising out
of or relating to this Agreement or any document, agreement or transaction
contemplated hereby, or any action or proceeding to execute or otherwise
enforce any judgment in respect of any breach hereunder or under any
document or agreement contemplated hereby. Receipt of process so served
shall be conclusively presumed as evidenced by a delivery receipt
furnished by the United States Postal Service or any commercial delivery
service.
U.S. RESTAURANT PROPERTIES OPERATING L.P. 75 NOTE PURCHASE AGREEMENT
(d) OTHER FORUMS. Nothing herein shall in any way be deemed to
limit the ability of any holder of Notes to serve any writs, process or
summonses in any manner permitted by applicable law or to obtain
jurisdiction over the Company or the Guarantors in such other jurisdiction,
and in such other manner, as may be permitted by applicable law.
11.9 Release.
The Company and the Guarantors hereby voluntarily and knowingly release
and forever discharge the Collateral Agent, the holders of the Notes and
their respective predecessors, directors, officers, employees, agents,
investment advisors, successors and assigns, from all possible claims,
demands, actions, causes of action, damages, costs, expenses, and liabilities
whatsoever, known or unknown, anticipated or unanticipated, suspected or
unsuspected, fixed, contingent, or conditional, at law or in equity,
originating in whole or in part on or before the Closing Date, which the
Company and the Guarantors, individually or collectively, may now or
hereafter have against the Collateral Agent, the holders of the Notes and
their respective predecessors, directors, officers, employees, agents,
investment advisors, successors and assigns, if any, and irrespective of
whether any such claims arise out of contract, tort, violation of law or
regulations, or otherwise, including, without limitation, any contracting
for, charging, taking, reserving, collecting or receiving interest in excess
of the highest lawful rate applicable, the exercise of any rights and
remedies under this Agreement, the Notes, any Security Document or other
Financing Document, and the negotiation for and execution of this Agreement.
11.10 INDEMNIFICATION OF EACH HOLDER.
From and at all times after the date of this Agreement, and in addition
to all of the holders' of Notes other rights and remedies against the
Company, the Company agrees to indemnify and hold harmless the Collateral
Agent, each holder of the Notes and each director, officer, employee, agent,
investment advisor and affiliate of the Collateral Agent and each such holder
against any and all claims (whether valid or not), losses, damages,
liabilities, costs and expenses of any kind or nature whatsoever (including,
without limitation, reasonable attorneys' fees, costs and expenses), incurred
by or asserted against the Collateral Agent, such holder or any such
director, officer, employee, agent, investment advisor or affiliate, from and
after the date hereof, whether direct, indirect or consequential, as a result
of or arising from or in any way relating to any suit, action or proceeding
(including any inquiry or investigation) by any Person, whether threatened or
initiated, asserting a claim for any legal or equitable remedy against any
Person under any statute or regulation, including, but not limited to, any
federal or state securities laws, or under any common law or equitable cause
or otherwise, arising from or in connection with the negotiation,
preparation, execution, performance or enforcement of this Agreement or the
other Financing Documents or any transactions contemplated herein or therein,
or any of the transactions contemplated hereunder, whether or not the
Collateral Agent, such holder or any such director, officer, employee, agent,
investment advisor or affiliate is a party to any such action, proceeding,
suit or the target of any such inquiry or investigation; PROVIDED, HOWEVER,
that no indemnified party shall have the right to be indemnified hereunder
for any liability resulting from the willful misconduct or gross negligence
of such indemnified party. All of the foregoing losses, damages, costs and
expenses of any holder of Notes shall be payable as and when incurred upon
demand by such holder and shall be additional obligations hereunder. The
obligations of the Company and the rights of the holders of Notes under this
Section 11.10 shall survive payment of the Notes and the termination of this
agreement.
11.11 ENTIRE AGREEMENT; ORAL AGREEMENTS INEFFECTIVE.
This Agreement and the other "loan agreements" (as defined in section
26.02(a)(2) Of the Texas Business & Commerce Code, as amended) represent the
final agreement between the parties, and this Agreement and the other written
loan agreements may not be contradicted by evidence of prior, contemporaneous
or
U.S. RESTAURANT PROPERTIES OPERATING L.P. 76 NOTE PURCHASE AGREEMENT
subsequent oral agreements between the parties. There are no unwritten oral
agreements between the parties.
11.12 DUPLICATE ORIGINALS, EXECUTION IN COUNTERPART.
Two (2) or more duplicate originals hereof may be signed by the parties,
each of which shall be an original but all of which together shall constitute
one and the same instrument. This Agreement may be executed in one or more
counterparts and shall be effective when at least one counterpart shall have
been executed by each party hereto, and each set of counterparts that,
collectively, show execution by each party hereto shall constitute one
duplicate original.
[REMAINDER OF PAGE INTENTIONALLY BLANK; NEXT PAGE IS SIGNATURE PAGE.]
U.S. RESTAURANT PROPERTIES OPERATING L.P. 77 NOTE PURCHASE AGREEMENT
If this Agreement is satisfactory to you, please so indicate by signing
the acceptance at the foot of a counterpart hereof and returning such
counterpart to the Company, the Parent, Business Trust I, Business Trust II,
West Virginia Partners, Renovation Partners, Properties Development, Xxxxxx,
Lincoln and Carolina, whereupon this Agreement shall become binding among us
in accordance with its terms.
Very truly yours,
U.S. RESTAURANT PROPERTIES OPERATING
L.P.
BY: U.S. RESTAURANT PROPERTIES,
INC.,
its general partner
By
--------------------------------
Name:
Title:
U.S. RESTAURANT PROPERTIES MASTER L.P.
BY: U.S. RESTAURANT PROPERTIES,
INC.,
its general partner
By
--------------------------------
Name:
Title:
U.S. RESTAURANT PROPERTIES BUSINESS
TRUST I
BY: XXXXXX X. XXXXXXX
its managing trustee
By
--------------------------------
BY: XXXX XXXXXXXX
its managing trustee
By
--------------------------------
U.S. RESTAURANT PROPERTIES OPERATING L.P. NOTE PURCHASE AGREEMENT
U.S. RESTAURANT PROPERTIES BUSINESS
TRUST II
BY: XXXXXX X. XXXXXXX
its managing trustee
By
--------------------------------
BY: XXXX XXXXXXXX
its managing trustee
By
--------------------------------
USRP (WEST VIRGINIA) PARTNERS, L.P.
BY: USRP RENOVATION CORP.,
its general partner
By
--------------------------------
Name:
Title:
RESTAURANT RENOVATION PARTNERS, L.P.
BY: RESTAURANT ACQUISITION CORP.,
its general partner
By
--------------------------------
Name:
Title:
X.X.XXXXXXXXXX PROPERTIES
DEVELOPMENT, L.P.
BY: RESTAURANT CONTRACTOR CORP.,
its general partner
By
--------------------------------
Name:
Title:
USRP (XXXXXX), LTD.
BY: RESTAURANT ACQUISITION CORP.
its general partner
By
--------------------------------
Name:
Title:
U.S. RESTAURANT PROPERTIES OPERATING L.P. NOTE PURCHASE AGREEMENT
USRP (LINCOLN), LTD.
BY: RESTAURANT ACQUISITION CORP.
its general partner
By
--------------------------------
Name:
Title:
USRP (CAROLINA), LTD.
BY: RESTAURANT ACQUISITION CORP.
its general partner
By
--------------------------------
Name:
Title:
U.S. RESTAURANT PROPERTIES OPERATING L.P. NOTE PURCHASE AGREEMENT
Accepted:
[PURCHASER]
By
-----------------------------------------
Name:
Title:
U.S. RESTAURANT PROPERTIES OPERATING L.P. NOTE PURCHASE AGREEMENT
ANNEX 1
INFORMATION AS TO PURCHASERS
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
Purchaser Name PACIFIC MUTUAL LIFE INSURANCE COMPANY
--------------------------------------------------------------------------------------
Name in which to XXXXXX & Co
register Note(s)
--------------------------------------------------------------------------------------
Series; Note SERIES A NOTES:
registration number; AR-1 -- $5,000,000
Principal amount AR-2 -- $5,000,000
--------------------------------------------------------------------------------------
Payment on account of
Note(s)
Method Federal Funds Wire Transfer (for credit not later
than 12:00 noon, New York City time)
Account The Chase Manhattan Bank, N.A.
information ABA # 000-000-000
A/C = 000-0-000000
BBK = Chase Manhattan Bank/SSTO
A/C Name: Pacific Mutual Gen Acct
Sub A/C Number: 47363300
--------------------------------------------------------------------------------------
Accompanying SERIES A NOTES:
information U.S. Restaurant Properties Operating L.P.; 8.06%
Series A Senior Secured Guarantied Notes Due
January 31, 2000; PPN: 90346# AA 8; due date and
allocation (as among principal, Make-Whole Amount
and interest) of the payment being made and the
name and address of the bank from which such wire
transfer was made.
--------------------------------------------------------------------------------------
Address for notices Xxxxx X. Xxxxxxx (2ND FL.)
related to payments Investment Analyst
Pacific Mutual Life Insurance Company
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
--------------------------------------------------------------------------------------
Address for all other Xxxxx X. Xxxxxxx (2ND FL.)
notices Investment Analyst
Pacific Mutual Life Insurance Company
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Facsimile: 000-000-0000
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
U.S. RESTAURANT PROPERTIES OPERATING L.P. Annex 1-1 NOTE PURCHASE AGREEMENT
ANNEX 1
INFORMATION AS TO PURCHASERS (CONT.)
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
Purchaser Name PACIFIC MUTUAL LIFE INSURANCE COMPANY
--------------------------------------------------------------------------------------
Delivery of Securities The Chase Manhattan Bank
4 New York Plaza
Ground Floor Window
Xxx Xxxx, XX 00000
Ref: A/C Name: Pacific Mutual Gen Acct
A/C Number: 89930705
Duplicate Remittance to:
The Chase Manhattan Bank, N.A.
X.X. Xxx 000
Xxxx Xxxxxx Xxxxxxx
Xxx Xxxx, XX 00000
With a copy to:
Xxxxxxxx X. Xxxxxxx
Assistant Vice President
Pacific Mutual Life Insurance Company
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
--------------------------------------------------------------------------------------
Additional Instructions 2 signature lines required
--------------------------------------------------------------------------------------
Tax identification 00-0000000
number
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
U.S. RESTAURANT PROPERTIES OPERATING L.P. Annex 1-2 NOTE PURCHASE AGREEMENT
ANNEX 1
INFORMATION AS TO PURCHASER (CONT.)
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Purchaser Name THE OHIO NATIONAL LIFE INSURANCE COMPANY
------------------------------------------------------------------------------
Name in which to THE OHIO NATIONAL LIFE INSURANCE COMPANY
register Note(s)
------------------------------------------------------------------------------
Series; Note SERIES A NOTES:
registration number; AR-3 -- $2,500,000
Principal amount
SERIES B NOTES:
BR-1 -- $2,500,000
------------------------------------------------------------------------------
Payment on account of
Note(s)
Method Federal Funds Wire Transfer (for credit not later
than 12:00 noon, New York City time)
Account Star Bank, N.A.
information ABA # 042-000013
0xx & Xxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
For credit to The Ohio National Life Insurance
Company's Account No. 000-000-0
------------------------------------------------------------------------------
Accompanying SERIES A NOTES:
information U.S. Restaurant Properties Operating L.P.; 8.06%
Series A Senior Secured Guarantied Notes Due
January 31, 2000; PPN: 90346# AA 8; due date and
allocation (as among principal, Make-Whole Amount
and interest) of the payment being made and the
name and address of the bank from which such wire
transfer was made.
SERIES B NOTES:
U.S. Restaurant Properties Operating L.P.; 8.30%
Series B Senior Secured Guarantied Notes Due
January 31, 2002; PPN: 90346# AB 6; due date and
allocation (as among principal, Make-Whole Amount
and interest) of the payment being made and the
name and address of the bank from which such wire
transfer was made.
------------------------------------------------------------------------------
Address for notices THE OHIO NATIONAL LIFE INSURANCE COMPANY
related to payments Xxxx Xxxxxx Xxx 000
Xxxxxxxxxx, XX 00000
Attn: Investment Department
------------------------------------------------------------------------------
Address for all other THE OHIO NATIONAL LIFE INSURANCE COMPANY
notices Xxxx Xxxxxx Xxx 000
Xxxxxxxxxx, XX 00000
Attn: Investment Department
Facsimile: 000-000-0000
------------------------------------------------------------------------------
Tax identification 00-0000000
number
------------------------------------------------------------------------------
------------------------------------------------------------------------------
U.S. RESTAURANT PROPERTIES OPERATING L.P. Annex 1-3 NOTE PURCHASE AGREEMENT
ANNEX 1
INFORMATION AS TO PURCHASER (Cont.)
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Purchaser Name JEFFERSON-PILOT LIFE INSURANCE COMPANY
------------------------------------------------------------------------------
Name in which to JEFFERSON-PILOT LIFE INSURANCE COMPANY
register Note(s)
------------------------------------------------------------------------------
Series; Note SERIES B NOTES:
registration number; BR-2 -- $5,000,000
Principal amount
------------------------------------------------------------------------------
Payment on account of
Note(s)
Method Federal Funds Wire Transfer (for credit not later
than 12:00 noon, New York City time)
Account Jefferson-Pilot Life Insurance Company
information x/x Xxx Xxxx xx Xxx Xxxx
XXX #021 000 018 BNF: IOC566
Attention: P&I Department
------------------------------------------------------------------------------
Accompanying SERIES B NOTES:
information U.S. Restaurant Properties Operating L.P.; 8.30%
Series B Senior Secured Guarantied Notes Due
January 31, 2002; PPN: 90346# AB 6; due date and
allocation (as among principal, Make-Whole Amount
and interest) of the payment being made and the
name and address of the bank from which such wire
transfer was made.
------------------------------------------------------------------------------
Address for notices Jefferson-Pilot Life Insurance Company
related to payments x/x Xxx Xxxx xx Xxx Xxxx
Xxxxxxxxx: X&X Department
X.X. Xxx 00000
Xxxxxx, Xxx Xxxxxx 00000
With duplicate copy to:
Jefferson-Pilot Life Insurance Company
X.X. Xxx 00000
Xxxxxxxxxx, XX 00000
Attn: Securities Administration - 3630
Fax: 910/000-0000
------------------------------------------------------------------------------
Address for all other Jefferson-Pilot Life Insurance Company
notices X.X. Xxx 00000
Xxxxxxxxxx, XX 00000
Attn: Securities Administration - 3630
Facsimile: 910/691-3025
------------------------------------------------------------------------------
U.S. RESTAURANT PROPERTIES OPERATING L.P. Annex 1-4 NOTE PURCHASE AGREEMENT
ANNEX 1
INFORMATION AS TO PURCHASER (CONT.)
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Purchaser Name JEFFERSON-PILOT LIFE INSURANCE COMPANY
------------------------------------------------------------------------------
Delivery of Notes Bank of New York
One Wall Street
3rd Floor, Window A
For Jefferson-Pilot Life Acct. 186100
Xxx Xxxx, Xxx Xxxx 00000
With duplicate copy to:
Jefferson-Pilot Life Insurance Company
X.X. Xxx 00000
Xxxxxxxxxx, XX 00000
Attn: Securities Administration - 3630
------------------------------------------------------------------------------
Tax identification 00-0000000
number
------------------------------------------------------------------------------
------------------------------------------------------------------------------
U.S. RESTAURANT PROPERTIES OPERATING L.P. Annex 1-5 NOTE PURCHASE AGREEMENT
ANNEX 1
INFORMATION AS TO PURCHASER (CONT.)
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Purchaser Name XXXXXXXXX XXXXXXXX LIFE INSURANCE COMPANY OF
AMERICA
------------------------------------------------------------------------------
Name in which to XXXXXXXXX XXXXXXXX LIFE INSURANCE COMPANY OF
register Note(s) AMERICA
------------------------------------------------------------------------------
Series; Note SERIES B NOTES:
registration number; BR-3 -- $5,000,000
Principal amount
------------------------------------------------------------------------------
Payment on account of
Note(s)
Method Federal Funds Wire Transfer (for credit not later
than 12:00 noon, New York City time)
Account Xxxxxxxxx Xxxxxxxx Life Insurance Company of
information America
x/x Xxx Xxxx xx Xxx Xxxx
XXX #021 000 018
BNF: IOC566
Attention: P&I Department
------------------------------------------------------------------------------
Accompanying SERIES B NOTES:
information U.S. Restaurant Properties Operating L.P.; 8.30%
Series B Senior Secured Guarantied Notes Due
January 31, 2002; PPN: 90346# AB 6; due date and
allocation (as among principal, Make-Whole Amount
and interest) of the payment being made and the
name and address of the bank from which such wire
transfer was made.
------------------------------------------------------------------------------
Address for notices Xxxxxxxxx Xxxxxxxx Life Insurance Company of
related to payments America
x/x Xxx Xxxx xx Xxx Xxxx
Xxxxxxxxx: X&X Department
X.X. Xxx 00000
Xxxxxx, XX 00000
With duplicate copy to:
Xxxxxxxxx Xxxxxxxx Life Insurance Company of
America
X.X. Xxx 00000
Xxxxxxxxxx, XX 00000
Attn: Securities Administration - 3630
Fax: 910/000-0000
------------------------------------------------------------------------------
Address for all other Xxxxxxxxx Xxxxxxxx Life Insurance Company of
notices America
X.X. Xxx 00000
Xxxxxxxxxx, XX 00000
Attn: Securities Administration - 3630
Facsimile: 910/691-3025
------------------------------------------------------------------------------
U.S. RESTAURANT PROPERTIES OPERATING L.P. Annex 1-6 NOTE PURCHASE AGREEMENT
ANNEX 1
INFORMATION AS TO PURCHASER (CONT.)
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Purchaser Name XXXXXXXXX XXXXXXXX LIFE INSURANCE COMPANY OF
AMERICA
------------------------------------------------------------------------------
Delivery of Notes Bank of New York
One Wall Street
3rd Floor, Window A
For Xxxxxxxxx Xxxxxxxx Life Acct. 186101
Xxx Xxxx, Xxx Xxxx 00000
With duplicate copy to:
Xxxxxxxxx Xxxxxxxx Life Insurance Company of
America
X.X. Xxx 00000
Xxxxxxxxxx, XX 00000
Attn: Securities Administration - 3630
------------------------------------------------------------------------------
Tax identification 00-0000000
number
------------------------------------------------------------------------------
U.S. RESTAURANT PROPERTIES OPERATING L.P. Annex 1-7 NOTE PURCHASE AGREEMENT
ANNEX 1
INFORMATION AS TO PURCHASER (CONT.)
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Purchaser Name FIRST XXXXXXXXX XXXXXXXX LIFE INSURANCE COMPANY
------------------------------------------------------------------------------
Name in which to FIRST XXXXXXXXX XXXXXXXX LIFE INSURANCE COMPANY
register Note(s)
------------------------------------------------------------------------------
Series; Note SERIES B NOTES:
registration number; BR-4 -- $5,000,000
Principal amount
------------------------------------------------------------------------------
Payment on account of
Note(s)
Method Federal Funds Wire Transfer (for credit not later
than 12:00 noon, New York City time)
Account
information
Northern Trust Company New York
Attention: INC/DIV
ABA No. 071 000 152
First Xxxxxxxxx Xxxxxxxx Life Insurance Company
Account No.: 26-30446
------------------------------------------------------------------------------
Accompanying SERIES B NOTES:
information U.S. Restaurant Properties Operating L.P.; 8.30%
Series B Senior Secured Guarantied Notes Due
January 31, 2002; PPN: 90346# AB 6; due date and
allocation (as among principal, Make-Whole Amount
and interest) of the payment being made and the
name and address of the bank from which such wire
transfer was made.
------------------------------------------------------------------------------
Address for notices The Northern Trust Company of New York
related to payments 00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
With duplicate copy to:
First Xxxxxxxxx Xxxxxxxx Life Insurance Company
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Securities Administration - 3630
Fax: 910/000-0000
------------------------------------------------------------------------------
Address for all other First Xxxxxxxxx Xxxxxxxx Life Insurance Company
notices 000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Securities Administration - 3630
------------------------------------------------------------------------------
U.S. RESTAURANT PROPERTIES OPERATING L.P. Annex 1-8 NOTE PURCHASE AGREEMENT
ANNEX 1
INFORMATION AS TO PURCHASER (CONT.)
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Purchaser Name FIRST XXXXXXXXX XXXXXXXX LIFE INSURANCE COMPANY
------------------------------------------------------------------------------
Delivery of Notes The Northern Trust Company of New York
for First Xxxxxxxxx Xxxxxxxx Life Acct. 26-30446
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
With duplicate copy to:
First Xxxxxxxxx Xxxxxxxx Life Insurance Company
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Securities Administration - 3630
------------------------------------------------------------------------------
Tax identification 00-0000000
number
------------------------------------------------------------------------------
------------------------------------------------------------------------------
U.S. RESTAURANT PROPERTIES OPERATING L.P. Annex 1-9 NOTE PURCHASE AGREEMENT
ANNEX 1
INFORMATION AS TO PURCHASERS (CONT.)
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
Purchaser Name RELIASTAR LIFE INSURANCE COMPANY
--------------------------------------------------------------------------------------
Name in which to RELIASTAR LIFE INSURANCE COMPANY
register Note(s)
--------------------------------------------------------------------------------------
Series; Note SERIES B NOTES:
registration number; BR-5 -- $4,000,000
Principal amount
--------------------------------------------------------------------------------------
Payment on account of
Note(s)
Method Federal Funds Wire Transfer (for credit not later
than 12:00 noon, New York City time)
Account First National Bank N.A./mpls
information 000 0xx Xxx. X.
Xxxx. #1102-4001-4461
Bank ABA #000000000
Attn: Securities Accounting
--------------------------------------------------------------------------------------
Accompanying SERIES B NOTES:
information U.S. Restaurant Properties Operating L.P.; 8.30%
Series B Senior Secured Guarantied Notes Due
January 31, 2002; PPN: 90346# AB 6; due date and
allocation (as among principal, Make-Whole Amount
and interest) of the payment being made and the
name and address of the bank from which such wire
transfer was made.
--------------------------------------------------------------------------------------
Address for notices Reliastar Investment Research
related to payments 000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxx Xxxxxxxx
Tel. No.: 000-000-0000
Fax No.: 000-000-0000
--------------------------------------------------------------------------------------
Address for all other Reliastar Investment Research
notices 000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxx Xxxxxxxx
Tel. No.: 000-000-0000
Fax No.: 000-000-0000
--------------------------------------------------------------------------------------
Delivery of Securities Reliastar Investment Research
000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxx
--------------------------------------------------------------------------------------
Tax identification 00-0000000
number
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
U.S. RESTAURANT PROPERTIES OPERATING L.P. Annex 1-10 NOTE PURCHASE AGREEMENT
ANNEX 1
INFORMATION AS TO PURCHASERS (CONT.)
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
Purchaser Name NORTHERN LIFE INSURANCE COMPANY
--------------------------------------------------------------------------------------
Name in which to NORTHERN LIFE INSURANCE COMPANY
register Note(s)
--------------------------------------------------------------------------------------
Series; Note SERIES B NOTES:
registration number; BR-6 -- $4,000,000
Principal amount
--------------------------------------------------------------------------------------
Payment on account of
Note(s)
Method Federal Funds Wire Transfer (for credit not later
than 12:00 noon, New York City time)
Account First National Bank N.A./mpls
information 000 0xx Xxx. X.
Xxxx. #1602-3237-6105
Bank ABA #000000000
Attn: Securities Accounting
--------------------------------------------------------------------------------------
Accompanying SERIES B NOTES:
information U.S. Restaurant Properties Operating L.P.; 8.30%
Series B Senior Secured Guarantied Notes Due
January 31, 2002; PPN: 90346# AB 6; due date and
allocation (as among principal, Make-Whole Amount
and interest) of the payment being made and the
name and address of the bank from which such wire
transfer was made.
--------------------------------------------------------------------------------------
Address for notices Reliastar Investment Research
related to payments 000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxx Xxxxxxxx
Tel. No.: 000-000-0000
Fax No.: 000-000-0000
--------------------------------------------------------------------------------------
Address for all other Reliastar Investment Research
notices 000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxx Xxxxxxxx
Tel. No.: 000-000-0000
Fax No.: 000-000-0000
--------------------------------------------------------------------------------------
Delivery of Securities Reliastar Investment Research
000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxx
--------------------------------------------------------------------------------------
Tax identification 00-0000000
number
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
U.S. RESTAURANT PROPERTIES OPERATING L.P. Annex 1-11 NOTE PURCHASE AGREEMENT
ANNEX 1
INFORMATION AS TO PURCHASERS (CONT.)
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
Purchaser Name RELIASTAR BANKERS SECURITY LIFE INSURANCE COMPANY
--------------------------------------------------------------------------------------
Name in which to XXXXXX & CO.
register Note(s)
--------------------------------------------------------------------------------------
Series; Note SERIES B NOTES:
registration number; BR-7 -- $1,000,000
Principal amount
--------------------------------------------------------------------------------------
Payment on account of
Note(s)
Method Federal Funds Wire Transfer (for credit not later
than 12:00 noon, New York City time)
Account Chase Manhattan
information New York, NY
A/C #544755102
F/C #1960 Dept 571 NonStandard Securities
Bank ABA #000000000
--------------------------------------------------------------------------------------
Accompanying SERIES B NOTES:
information U.S. Restaurant Properties Operating L.P.; 8.30%
Series B Senior Secured Guarantied Notes Due
January 31, 2002; PPN: 90346# AB 6; due date and
allocation (as among principal, Make-Whole Amount
and interest) of the payment being made and the
name and address of the bank from which such wire
transfer was made.
--------------------------------------------------------------------------------------
Address for notices Reliastar Investment Research
related to payments 000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxx Xxxxxxxx
Tel. No.: 000-000-0000
Fax No.: 000-000-0000
--------------------------------------------------------------------------------------
Address for all other Reliastar Investment Research
notices 000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxx Xxxxxxxx
Tel. No.: 000-000-0000
Fax No.: 000-000-0000
--------------------------------------------------------------------------------------
Delivery of Securities Reliastar Investment Research
000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxx
--------------------------------------------------------------------------------------
Additional Instructions 2 signature lines required
--------------------------------------------------------------------------------------
Tax identification 00-0000000
number
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
U.S. RESTAURANT PROPERTIES OPERATING L.P. Annex 1-12 NOTE PURCHASE AGREEMENT
ANNEX 1
INFORMATION AS TO PURCHASERS (CONT.)
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
Purchaser Name RELIASTAR LIFE INSURANCE COMPANY
--------------------------------------------------------------------------------------
Name in which to XXXXXXX & CO.
register Note(s)
--------------------------------------------------------------------------------------
Series; Note SERIES B NOTES:
registration number; BR-8 -- $1,000,000
Principal amount
--------------------------------------------------------------------------------------
Payment on account of
Note(s)
Method Federal Funds Wire Transfer (for credit not later
than 12:00 noon, New York City time)
Account Bankers Trust
information New York, NY
ABA #000000000
A/C #00-000-000
--------------------------------------------------------------------------------------
Accompanying SERIES B NOTES:
information U.S. Restaurant Properties Operating L.P.; 8.30%
Series B Senior Secured Guarantied Notes Due
January 31, 2002; PPN: 90346# AB 6; due date and
allocation (as among principal, Make-Whole Amount
and interest) of the payment being made and the
name and address of the bank from which such wire
transfer was made.
--------------------------------------------------------------------------------------
Address for notices Reliastar Investment Research
related to payments 000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxx Xxxxxxxx
Tel. No.: 000-000-0000
Fax No.: 000-000-0000
--------------------------------------------------------------------------------------
Address for all other Reliastar Investment Research
notices 000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxx Xxxxxxxx
Tel. No.: 000-000-0000
Fax No.: 000-000-0000
--------------------------------------------------------------------------------------
Delivery of Securities Reliastar Investment Research
000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxx
--------------------------------------------------------------------------------------
Tax identification 00-0000000
number
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
U.S. RESTAURANT PROPERTIES OPERATING L.P. Annex 1-13 NOTE PURCHASE AGREEMENT
ANNEX 2
PAYMENT INSTRUCTIONS AT CLOSING; ADDRESSES FOR NOTICES
1. PAYMENT INSTRUCTIONS AT CLOSING
The Company hereby directs that the purchase price for the Notes be sent
via wire transfer as follows:
Comerica Bank - Texas
ABA #: 111 000 753
Credit Account of Burger King Operating L.P.
Account #: 7611017455
Notify: Xxxxxxx Xxxxxxxxx (000) 000-0000, ext. 33
Bank Address:
0000 X. Xxxxxxx Xxxxxxxxxx
Xxxxx 0000, 0xx Xxxxx
Xxxxxx, XX 00000
2. ADDRESSES FOR NOTICES
A. If to the Company:
U.S. Restaurant Properties Operating L.P.
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
Tel. No.: 000-000-0000 (ext. 19)
Fax No.: 000-000-0000
B. If to the Parent:
U.S. Restaurant Properties Master L.P.
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
Tel. No.: 000-000-0000 (ext. 19)
Fax No.: 000-000-0000
C. If to any of the other Guarantors, to such Guarantor at the following
address:
c/o U.S. Restaurant Properties Operating L.P.
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
Tel. No.: 000-000-0000 (ext. 19)
Fax No.: 000-000-0000
U.S. RESTAURANT PROPERTIES OPERATING L.P. Annex 2-1 NOTE PURCHASE AGREEMENT
ANNEX 3
INFORMATION AS TO COMPANY AND GUARANTORS
PART 2.2(a) - FINANCIAL STATEMENTS:
PART 2.2(b) - DEBT:
PART 2.3 - SUBSIDIARIES AND AFFILIATES:
PART 2.4(b) - INTERESTS IN REAL PROPERTY:
PART 2.4(c) - LEASES:
PART 2.4(d) - UCC MATTERS:
PART 2.8 - FOREIGN QUALIFICATION AND GOOD STANDING:
PART 2.10(b) - RESTRICTIVE AGREEMENTS:
PART 2.12(a) - ERISA AFFILIATES AND EMPLOYEE BENEFIT PLANS:
PART 2.12(c) - WITHDRAWAL LIABILITIES AND REPORTABLE EVENTS UNDER
MULTIEMPLOYER PLANS:
PART 2.13(d) - ENVIRONMENTAL MATTERS:
PART 2.16(a) - NUMBER OF OFFEREES:
PART 2.18(a) - USE OF PROCEEDS:
PART 2.21 - INSURANCE:
PART 2.22 - LEASES:
PART 6.9(a) - EXISTING LIENS:
PART 9.1(a) - MANAGING GENERAL PARTNERS
PART 9.1(b) - PARTNERSHIP AGREEMENTS
U.S. RESTAURANT PROPERTIES OPERATING L.P. Annex 3-1 NOTE PURCHASE AGREEMENT
ANNEX 4
MORTGAGES AND ASSIGNMENTS OF RENTS
PART A. SECURITY DOCUMENTS TO BE DELIVERED AT OR BEFORE THE CLOSING.
On or before the Closing Date, the Parent and the Company will cause
original executed Mortgages and Assignment of Rents for each of the
Properties of the Parent, the Company or any Subsidiary located in the
following states and identified on Schedule 1 hereto to be delivered to the
Purchasers:
California
Georgia
Texas.
The specific form of Mortgage and Assignment of Rent will be in form and
substance satisfactory to the Purchasers and may be prepared in consultation
with special local counsel from such jurisdictions.
PART B. SECURITY DOCUMENTS TO BE DELIVERED AFTER THE CLOSING.
Within 60 days of the Purchasers must receive original executed
Mortgages and Assignments of Rents from the Parent, the Company and the
Subsidiaries with respect to each of the remaining Properties owned by such
Persons on the Closing Date (other than Properties located in the State of
Florida), which Properties are identified on Schedule 1 attached hereto.
With respect to such Properties (other than Properties located in Arizona,
Connecticut, Missouri and Pennsylvania), such Mortgage and Assignments of
Rents will be in the form of Exhibit F-1 or F-2, as applicable. With respect
to Properties located in Arizona, Connecticut, Missouri and Pennsylvania, the
specific form of Mortgage and Assignment of Rent will be in form and
substance satisfactory to the Purchasers and may be prepared in consultation
with special local counsel from such jurisdictions.
PART C. RECORDING OF MORTGAGES AND ASSIGNMENTS OF RENTS.
1. Each of the Mortgages and Assignment of Rents will be recorded as
soon as practicable after it has been delivered to the Purchasers' special
counsel.
2. With respect to Properties owned by the Parent, the Company and the
Subsidiaries on the Closing Date, no title report or search will be required
to determine whether the Collateral Agent has a first priority lien.
Annex 4-1
