PURCHASE AND SALE AGREEMENT
BETWEEN
"THE MIDON COMPANIES"
("Seller")
AND
U. S. RESTAURANT PROPERTIES MASTER L. P.
("Buyer")
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT ("Agreement") is entered into as of
June ________, 1997, by and between each member of the "MIDON COMPANIES"
IDENTIFIED AS A "Seller" on Schedule 1 hereto (each, a "Seller", and
collectively, the "Sellers"), and U. S. RESTAURANT PROPERTIES MASTER L. P., a
Delaware limited partnership ("Buyer").
W I T N E S S E T H:
In consideration of the mutual covenants set forth herein, Sellers and
Buyer agree as follows:
1. Conveyance of Properties. On the terms and subject to the conditions
set forth in this Agreement, at Closing, as hereinafter defined, each Seller
shall sell, convey and assign to Buyer, and Buyer shall buy and accept from each
Seller, subject to the Permitted Encumbrances, as hereinafter defined, the
seventeen (17) properties (individually, a "Property" and collectively, the
"Properties") set forth opposite such Seller's name on Schedule 1, attached
hereto including, with respect to each Property:
(a) good and indefeasible title in fee simple to the parcel of
land on which a restaurant is located (the "Land"), together with all rights and
interests appurtenant thereto, including the Seller's (i) right, title, and
interest, if any, in and to all adjacent streets, alleys, rights-of-way and any
adjacent strips or gores of real estate; and (ii) seller's right, title and
interest in and to all buildings, structures and other improvements located on
the Land ("Improvements");
(b) all (i) available and existing plans, drawings,
specifications, surveys, and other technical descriptions ("Plans and
Specifications"), (ii) assignable warranties ("Warranties"), and (iii)
assignable licenses or permits including certificates of occupancy ("Licenses");
and
(c) all of Seller's interest as lessor in the lease demising
space in each Property, (including all amendments, if any) ("Lease"), and the
security deposit ("Deposit"), if any, made by tenant ("Tenant") holding under
the Lease.
2. Xxxxxxx Money. Within three (3) business days after the date both
Buyer and Seller execute and deliver this Agreement, Buyer shall deliver to
Lawyers Title Insurance Corporation, 000 Xxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxx
00000, Attention: Xxxx Xxxxxxxxx ("Title Company") $50.00 ("Non-Refundable
Xxxxxxx Money") in consideration for this Agreement and the Inspection Period,
as hereinafter defined. The Title Company shall immediately deliver the
Non-Refundable Xxxxxxx Money to Seller and the Non-Refundable Xxxxxxx Money
shall be retained by Seller in all events. In addition, at the same time, the
Buyer shall deposit $135,000.00 with Title Company (the "Xxxxxxx Money"). The
Xxxxxxx Money shall be deposited in escrow or trust accounts that are
interest-bearing, readily available, liquid and federally insured to the full
extent of the Xxxxxxx Money deposited therein so that no portion of the Xxxxxxx
Money shall ever be at risk. The Xxxxxxx Money shall include any interest earned
thereon. Title Company shall deliver the Xxxxxxx Money only in accordance with
this Agreement.
3. Purchase Price.
(a) The purchase price which Sellers shall accept and Buyer
shall pay (the "Purchase Price") for the Properties shall be $13,505,487.00,
which shall be increased by the Percentage Rent Adjustment (as hereafter
defined). The Percentage Rent Adjustment shall be an amount equal to the product
of (i) ten (10) multiplied by (ii) the total percentage rent received by Seller
from the Tenants under the Leases during the twelve (12) month period ending on
the last day of the month preceding the Closing Date as herein defined;
provided, however, if Seller received percentage rent in lieu of base rent
during such period, the percentage rent shall be determined by reducing the
total rent received by Seller under such lease by the base rent due under such
lease.
(b) The Purchase Price shall be paid at Closing by the
delivery by Buyer to Sellers of (i) cash in the amount of $2,600,000.00, and
(ii) Units of limited partnership interest in Buyer (the "Units") equal to the
sum of (x) $10,905,487.00, and (y) the Percentage Rent Adjustment. The Units
delivered at Closing will not be registered under U. S. securities laws, but
will be subject to such registration rights as are set forth on Exhibit I. Buyer
will be subject to such registration obligation with respect to the Units as are
set forth in the Registration Rights Agreement, attached hereto as Exhibit I.
The Purchase Price will be paid to each Seller as set forth on Schedule 2, and
Buyer and Seller agree to treat consistently for tax and accounting purposes the
allocation set forth on Schedule 2. For purposes of determining the credit
against the Purchase Price for Units delivered hereunder, each Unit shall be
valued at the product of (A) 107% multiplied by (B) the average closing price of
the Units on the New York Stock Exchange for the five (5) trading days
immediately preceding Closing, and shall be subject to the Unit Guaranty of the
Purchaser, attached as Exhibit G hereto. The Purchase Price shall be paid in
trust to the Title Company at Closing and distributed immediately by the Title
Company as designated by this Agreement. The Purchase Price shall be credited by
the Xxxxxxx Money (and any interest earned thereon) to the extent delivered to
Seller and shall be adjusted at Closing as described in this Agreement.
(c) At Closing, Sellers shall execute an instruction letter
("Transfer Agent Instruction Letter") to American Stock Transfer, the transfer
agent for the Units, irrevocably instructing the transfer agent to withhold from
distributions on Seller's Units on the first payment date for dividends
following the Closing Date an amount equal to the Dividend Adjustment, and to
pay the Dividend Adjustment to Buyer. The Dividend Adjustment shall be an amount
equal to the product of (x) the number of Units (as defined in Section 3(b)
hereof) delivered to Seller at Closing multiplied by (y) the declared dividend
rate on the Units as of the record date for declaration of dividends immediately
preceding the Closing Date ("Record Date"), multiplied by (z) the ratio of (A)
the number of days between the Record Date and the Closing Date, divided by (B)
ninety (90), and reduced by the sum of the following adjustments: (1) the
interest which would accrue on the Dividend Adjustment at an eleven percent
(11.0%) annual rate between the Closing Date and the record date for the
declaration of dividends immediately following the Closing Date ("Post Closing
Record Date") plus (2) the product of (a) the excess, if any, of (i) the
dividend rate per Unit as of the Record Date, less (ii) the dividend rate per
Unit as of the Post Closing Record Date, multiplied by (b) the number of Units
delivered to Seller at the Closing.
(d) No proration shall be made of real estate property taxes,
utility charges and maintenance expenses, since these expenses are obligations
of the Tenant pursuant to the Leases. Rental payments under the Leases shall be
pro-rated as of 11:59 o'clock p.m. on the Closing Date, as between Seller and
Buyer.
4. Delivery of Documents by Seller. On or before the date which is
fourteen (14) days following the date the Xxxxxxx Money is paid by Buyer in
accord with the provisions of Section 2 above of this Agreement, Seller shall
deliver to Buyer the following documents ("Documents"), or with respect to the
Documents listed in Section 4(a) hereof, Buyer shall obtain at its cost and
expense, with respect to each Property:
(a) Commitments for title insurance covering the fee estate in
the Land and the Improvements ("Title Commitments") from the Title Company,
setting forth the status of the title of the Land and the Improvements, showing
all matters of record affecting the Land and the Improvements, together with a
true, complete, and legible copy of all documents referred to in the Title
Commitments;
(b) A current "as built" Survey for each Property drawn under
the minimum standard detail requirements for ALTA/ACSM land title surveys
listing all easements and encroachments affecting each Property, identifying
parking spaces (including handicapped designation) and ingress and egress, and
containing a flood plain certification, the costs for which surveys shall be
equally apportioned between Buyer and Seller;
(c) Current Phase I Environmental Liability Assessment for
each Property (the "Environmental Reports") for which the Seller shall pay the
costs;
(d) All current and historical sales information and balance
sheets and information of Tenant provided to Sellers under the Leases covering
the period August 1, 1994 to the most recent submissions of financial statements
required under the Leases (the "Financial Statements");
(e) Copy of existing insurance binder or certificate of
insurance covering the Property and Improvements;
(f) Tax bills for each Property for the most recent three (3)
tax years; and
(g) Copies of all existing (i) Plans and Specifications, (ii)
Warranties, (iii) Licenses, and (iv) Leases.
5. Right of Entry, Inspection, Termination.
(a) From the date hereof to the Closing Date, each Seller
shall afford Buyer and its representatives a continuing right to inspect, at
reasonable hours, the Properties, Documents, and all other documents or data
pertaining to the Properties. Buyer shall indemnify and hold each Seller
harmless from and against any loss, claim or liability arising or resulting from
the inspections made by Buyer. At any time prior to 5:00 p.m. on the date that
is thirty (30) days after the last to be delivered of any of the Documents
referenced in Section 4(a) through 4(f) hereof (the "Inspection Period"), Buyer
may terminate this Agreement as to all of the Properties pursuant to Section 14,
in its sole and absolute discretion, and obtain a return of the Xxxxxxx Money.
All such inspections shall be upon reasonable prior notice to Sellers and made
so as to minimize any adverse impact on tenant's business at each site. The
costs of any and all inspections made by Buyer shall be the sole and exclusive
cost of the Buyer.
(b) Buyer's failure to terminate this Agreement by delivering
the notice by the time called for in Section 5(a) shall terminate Buyer's right
to terminate this Agreement under that Section.
6. Title. Buyer shall have the right, at any time during the Inspection
Period, to object in writing to any adverse matters reflected by the Surveys or
the Title Commitments. All matters to which Buyer objects, or which are listed
as a "requirement" for the Title Company to issue the title policy are
"Non-Permitted Encumbrances". All matters to which such objection is not made
are "Permitted Encumbrances". Seller, at its sole cost and expense, shall have
the right, but not the obligation, to cure or remove all Non-Permitted
Encumbrances within ten (10) business days following the Seller's receipt of
such written objection from Buyer sent or delivered during the Inspection
Period. If Seller does not cause all of the Non-Permitted Encumbrances to be
removed or cured or if the Title Company is not able to insure over such
objections within the above described ten (10) day period, then this Agreement
shall automatically terminate unless Buyer delivers notice to Seller within two
(2) days after the expiration of the above described ten (10) day period of its
election to purchase the Property subject to the Non-Permitted Encumbrances
without any reduction in the Purchase Price. The existing Leases for each
Property shall not constitute a Non Permitted Encumbrance. Buyer shall not
unreasonably deny Seller's written request made within the said 10-day period
for additional time to cure or remove such Non Permitted Encumbrance.
7. Representations and Warranties.
(a) Seller Representations and Warranties. Each Seller, with
respect to the Property or Properties owned by such Seller, represents and
warrants to, and covenants with Buyer that:
(i) Subject to Section 8, Seller has the full right,
power, and authority to execute, deliver, and perform this Agreement,
and this Agreement, when executed and delivered by Seller and Buyer,
shall constitute the valid and binding agreement of Seller, and shall
be enforceable against Seller in accordance with its terms.
(ii) Subject to Section 8, all requisite action on
the part of Seller has been taken by Seller in connection with making
and entering into this Agreement and the consummation of the purchase
and sale provided for herein, and no consents or approvals are required
from any party in order to consummate such purchase and sale.
(iii) No attachments, execution proceedings,
assignments for the benefit of creditors, insolvency, bankruptcy,
reorganization or other proceedings are pending or, to the best of
Seller's knowledge, threatened against Seller, which would materially
adversely affect the ability of Seller to consummate the transactions
contemplated by this Agreement.
(iv) Seller has not received any written notice from
appropriate governmental authorities that any Property is in violation
of any applicable laws.
(v) Seller has not received any written notices from
any insurance company, board of fire underwriters or similar
organization regarding any defects in any Property.
(vi) The Improvements and their use shall be in full
compliance with all applicable zoning, building, environmental,
subdivision and other laws, rules, and regulations applicable thereto,
as well as any private restrictive covenants affecting the Properties,
and shall be ready for use and occupancy, and all necessary
certificates of approval and occupancy shall have been issued and
furnished by all authorities having or claiming to have jurisdiction
over the construction, use or occupancy of the Improvements.
(vii) Except for the Permitted Encumbrances and
existing Leases, on the Closing Date, Seller will own each Property
free and clear of all liens, restrictions, charges and encumbrances.
From the date hereof, and until the Closing or earlier proper
termination of this Agreement, Seller shall not sell, assign or create
any right, title or interest whatsoever in or to any Property or create
any liens, encumbrances or charge thereon without discharging the same
at or prior to the Closing Date.
(viii) To the best of Seller's knowledge, the
Financial Statements are and will be true, correct, accurate and
complete and will not omit to state any fact or condition, the omission
of which makes such statements misleading.
(ix) Except as disclosed on Schedule 3, Seller has no
knowledge of any litigation, or possible litigation, or of claims of
any kind, or of any facts or circumstances which may in any way
adversely affect Seller or the Property, including regulations of the
Environmental Protection Agency and any state regulatory body
concerning the disposal of grease, hazardous waste, petroleum, any
underground storage tanks or any other hazardous materials or
regulations of the Americans with Disabilities Act providing for access
to the premises, dining areas and bathroom areas of any Property
("Applicable Laws").
(x) To the best of Seller's knowledge, all structures
and Improvements upon each Property have been constructed and installed
in full compliance with the Plans and Specifications and with all
applicable laws, statutes, ordinances, codes, covenants, conditions and
restrictions of any kind or nature affecting such Property which were
in effect at the time of such construction.
(xi) Seller has no information or actual knowledge of
any proposed change in any of the Applicable Laws or any judicial or
administrative action or any action by adjacent landowner or any facts
or conditions relating to any Property which would materially and
adversely affect, prevent or limit the use of such Property as a
restaurant.
(xii) Seller has received no written notice of
taking, condemnation, betterment or assessment, actual or proposed,
with respect to any Property, excepting only regularly issued real
property tax assessments for such Property.
(xiii) No portion of any Property lies within any
100-year flood plain, to the best of Seller's knowledge.
(xiv) The Leases are in full force and effect and
Seller has no knowledge of any event which would constitute a default
or any event of default either by Seller or Tenant under any lease.
(b) Buyer Representations and Warranties. Buyer hereby
represents and warrants to, and covenants with each Seller that:
(i) Buyer has the full right, power and authority to
execute, deliver and perform this Agreement, and all transactions
contemplated by this Agreement, and this Agreement, when executed and
delivered by Buyer to Seller, shall constitute the valid and binding
agreement of Buyer to Seller and shall be enforceable against Buyer in
accordance with its terms.
(ii) All requisite action on the part of Buyer has
been taken by Buyer in connection with making and entering into this
Agreement and the consummation of the purchase and sale contemplated by
this Agreement, and no consents or approvals are required from any
other entity or party in order to consummate such purchase and sale.
(iii) Buyer has no knowledge of any litigation, or
possible litigation, or of claims of any kind, or of any facts or
circumstances, which may in any way adversely affect Buyer and Buyer's
guarantees that are intended to be included in the Guarantee Agreement
now set forth as Exhibit G to this Agreement.
(iv) Buyer has no knowledge of, and no reason to
believe, that the payment by Buyer to Seller of the Units of limited
partnership in Buyer, as described in Section 3 hereof, is, or will be,
unlawful or in violation of any law, rule or regulation of federal or
state securities laws, or of the Securities and Exchange Commission or
of any other government agency or entity having jurisdiction over such
matters or transactions involving such Units of limited partnership.
When used in this Section 7, the term "knowledge", or "the best
knowledge" of Seller or Buyer means the actual knowledge of such party's
executive officers or supervisory employees without a duty of inquiry, and does
not encompass constructive knowledge, as for example, from the Tenants at the
Properties with respect to Seller.
All representations and warranties made in this Agreement
shall be deemed to be made on the date hereof and again on the Closing Date. It
shall be a condition of each parties' obligation to close that all warranties
and representations made by the other party hereto are true on the Closing Date.
If either party discovers prior to Closing, that any representation or warranty
made in this Agreement by the other party is not true, then the party
discovering such untrue representation or warranty shall have the right, as its
sole and exclusive remedies, to either (i) terminate this Agreement in
accordance with Section 14 by delivering notice to the other party prior to the
Closing Date, or (ii) proceed to close the purchase and sale of the Properties
subject to such untrue warranty or representation without any adjustment in the
Purchase Price. If either party (the "Indemnified Party") discovers after
Closing that any representation or warranty made in this Agreement by the other
party is not true, the Indemnified Party shall be entitled to exercise any and
all rights and remedies available at law or in equity as a result of any breach
of any of such representations or warranties, provided as a condition to the
Indemnified Party's right to do so, the Indemnified Party must deliver written
notice of such breach to the other party, within one (1) year after the Closing
Date and the Indemnified Party must exercise such remedies including the filing
of any suit or other action within two (2) years after the Closing Date, based
on a breach thereof of which the Indemnified Party gave the other party such
notice within such one (1) year period after the Closing Date.
8. Conditions Precedent. Seller's obligation to sell the Properties to
Buyer is subject to Seller obtaining the required approval of its partners to
such sale on or before the Closing Date. Seller shall use its best efforts to
cause the satisfaction of all conditions and obligations of Seller set forth in
this Section 8 on or before the Closing Date. If Seller does not obtain such
required approvals, then Seller shall have the right to cancel this Agreement by
furnishing written notice of such cancellation in accordance with Section 10, in
which case the provisions of Section 14(c) of this Agreement shall apply.
9. Closing. The closing ("Closing") of the sale of the Properties by
Seller to Buyer shall occur on the first business day fifteen (15) days after
the last day of the Inspection Period, or at such earlier date agreed to by
Seller and Buyer in writing (the date such Closing occurs is hereinafter
referred to as the "Closing Date"). Closing shall occur in the offices of Xxxxxx
X. Xxxxx, 00 Xxxxxxxx Xxxxx Xxxx, Xxxxxx, Xxx Xxxx 00000, or at another place
and or time as mutually agreed upon by Seller and Buyer, commencing at 10:00
o'clock a. m. on the Closing Date. At Closing:
(a) Buyer shall deliver to each Seller (i) the Purchase Price
in accordance with Section 3; (ii) evidence satisfactory to Seller and the Title
Company that the person executing documents on behalf of Buyer has full right,
power and authority to do so; (iii) Assignment and Assumption of Lease Agreement
in the form of Exhibit F; (iv) the General Assignment in the form of Exhibit C;
(v) the Guaranty Agreement in the form of Exhibit G; (vi) the Registration
Rights Agreement in the form of Exhibit I; and (viii) the Investment Letter in
the form of Exhibit H, each and all of which shall be in proper form and be
properly executed.
(b) Each Seller shall deliver or cause to be delivered to
Buyer the following ("Closing Documents"):
(i) Special Warranty Deed in the form of Exhibit B,
conveying to Buyer the Land and Improvements subject to the Permitted
Encumbrances; General Assignment in the form of Exhibit C; IRC Section
1445 Certification in the form of Exhibit E; Assignment and Assumption
of Lease Agreement in the form of Exhibit F; Tenant Estoppel
Certificate in the form of Exhibit J; all fully executed, sworn to, and
acknowledged, as appropriate, by Seller or Tenant;
(ii) An executed Investment Letter substantially in
the form of Exhibit H attached hereto;
(iii) An executed Registration Rights Agreement in
the form of Exhibit I;
(iv) An executed Transfer Agent Instruction Letter;
(v) Evidence satisfactory to Buyer and Title Company
that the person or persons executing the Closing Documents on behalf of
Seller have full right, power and authority to do so; and
(vi) The originals of all Leases, Warranties,
Licenses and Plans and Specifications.
(c) Buyer shall be solely responsible for the costs of
obtaining the Title Commitments, the Owner Policies of Title Insurance for the
Properties, escrow fees of the Title Company and recording costs. Each Seller
shall pay, with respect to such Seller's Property, applicable deed stamp and
transfer taxes and the Environmental Reports. Buyer and Seller shall share
equally the Survey costs.
(d) Each of Seller and Buyer shall pay its own legal fees
incurred in connection with this Agreement; provided, however, that if a suit is
filed by Buyer or Seller alleging a breach hereof or default hereunder, the
non-prevailing party shall pay all reasonable legal fees of the prevailing party
resulting from such suit.
(e) Seller shall deliver to Buyer possession of the Properties
at the Closing, subject to the Leases and Permitted Encumbrances.
10. Notices. Any notice provided or permitted to be given under this
Agreement must be in writing and may be served by (a) depositing same in the
United States mail, addressed to the party to be notified, postage prepaid and
certified, with return receipt requested, (b) by delivering the same in person
to such party, or (c) by delivering the same by confirmed facsimile followed by
ordinary mailing of same, with proper postage thereon, within 24-hours after
such facsimile transmission. Notice given in accordance herewith shall be
effective upon the earlier of receipt at the address of the addressee or on the
third (3rd) day following deposit of same in the United States mail as provided
for herein, regardless of whether same is actually received. For purposes of
notice, the addresses of the parties shall be as follows:
If to Seller: c/o Jones and Little, CPA
00 Xxxx Xxxx Xxxxxx
Xxxx Xxxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxx, Xxxxxx Xxxxxx
If to Buyer: U. S. Restaurant Properties Master L. P.
Attn: Xxxx X. Xxxxxxxx
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 000, Xxxx Xxx 000
Xxxxxx, Xxxxx 00000
Telephone No. 000-000-0000
Facsimile No. 000-000-0000
Either party may change its address for notice by giving ten (10) days prior
written notice thereof to the other party.
11. Commissions. The Sellers and Buyer represent and warrant to each
other that no broker or real estate agent brought about this Agreement or the
sales/purchases contemplated by it. Buyer shall defend, indemnify, and hold
harmless Seller from any claim by any party claiming under Buyer for any
brokerage, commission, finder's, or other fees relative to this Agreement or the
sale of the Properties, and any court costs, attorneys' fees, or other costs or
expenses arising therefrom and alleged to be due by authorization of Buyer.
Seller shall defend, indemnify and hold harmless Buyer from any claim by any
party claiming under Seller (other than Broker) for any brokerage, commission,
finder's, or other fees relative to this Agreement or the sale of the
Properties, and any court costs, attorneys' fees, or other costs or expenses
arising therefrom and alleged to be due by authorization of Seller.
12. Assigns. This Agreement shall inure to the benefit of and be
binding on the parties hereto and their respective heirs, legal representatives,
successors and assigns. Buyer may assign to U. S. Restaurant Properties
Operating L. P., a Delaware limited partnership, the right to the conveyance of
the Properties on the Closing Date; provided, however, Buyer shall remain liable
for all obligations hereunder.
13. Destruction, Damage or Taking Before Closing. In the event of
damage to or destruction of all or any portion of any Property by fire or other
casualty, Seller shall promptly notify Buyer. If Seller reasonably estimates
that $50,000.00 or less is required to be expended to repair or restore the
damaged or destroyed Property or portion thereof ("Repair Cost"), this Agreement
shall remain in full force and effect, and Seller shall, at its option, either
(i) repair such damage or destruction, or, if such damage or destruction has not
been repaired prior to Closing, (ii) require Buyer to take title to the
Property, assign to Buyer all available casualty insurance proceeds and
indemnify Buyer (in form and content satisfactory to Buyer) for all costs and
expenses of repair in excess of available insurance proceeds. If Seller
reasonably estimates that the Repair Cost exceeds $50,000.00, Buyer shall have,
as its sole and exclusive remedies, (i) the option to terminate this Agreement
in accordance with Section 14 within ten (10) business days after its receipt of
notice from Seller as set forth above, by notice in writing to Seller given in
accord with Section 10 hereof, or (ii) if Buyer does not elect to terminate,
this Agreement shall remain in full force and effect, Buyer shall take title to
the Property subject to such damage to or destruction, with an assignment by
Seller to Buyer of all available casualty insurance proceeds. In the event of an
eminent domain taking or the issuance of a notice of an eminent domain taking
with respect to all or any portion of the Property, Seller shall promptly notify
Buyer. Buyer shall have, as its sole and exclusive remedies, (i) the option to
terminate this Agreement in accordance with Section 14 within ten (10) business
days after its receipt of such notice from Seller, by notice in writing to
Seller given in accord with Section 10 hereof, or (ii) if Buyer does not elect
to terminate this Agreement, this Agreement shall remain in full force and
effect, Buyer shall be obligated to consummate this transaction for the full
Purchase Price, and Buyer shall be entitled to receive all eminent domain awards
and, to the extent the same may be necessary and appropriate, Seller shall
assign to Buyer at Closing Seller's rights to such awards apportioned between
Buyer and Seller as to any such award applicable before and after the Closing
Date. In no event shall the Purchase Price be reduced, except to the extent of
any deductible amounts payable in connection with insurance proceeds assigned by
Seller to Buyer.
14. Termination and Remedies.
(a) If Buyer fails to consummate the purchase of the
Properties pursuant to this Agreement for any reason other than termination
hereof pursuant to a right granted to Buyer in Sections 5, 6, 7 or 13, or
terminated by Seller pursuant to Section 8, then Seller, as its sole and
exclusive remedy, shall have the right to terminate this Agreement by notifying
Buyer thereof in accord with Section 10 hereof, in which case the Title Company
shall promptly deliver the Xxxxxxx Money to Seller, whereupon neither party
shall have any further rights or obligations hereunder. Seller and Buyer hereby
acknowledge and agree they have included this provision for payment of
liquidated damages because, in the event of a breach by Buyer, the actual
damages incurred by Seller can reasonably be expected to approximate the amount
of liquidated damages called for, and because the actual amount of such damages
would be difficult if not impossible accurately to measure.
(b) If Seller fails to consummate the sale of the Properties
pursuant to this Agreement for any reason other than (i) termination hereof by
Buyer pursuant to Sections 5, 6, 7 or 13, (ii) Buyer's failure to perform its
obligations hereunder or, (iii) Seller's termination of this Agreement pursuant
to Section 8, Buyer shall have the right, as its sole and exclusive remedies, to
either (x) terminate this Agreement by notifying Seller thereof in accord with
Section 10, in which case the Title Company shall deliver the Xxxxxxx Money to
Buyer, whereupon neither party hereto shall have any further rights or
obligations hereunder, or (y) enforce specific performance of Seller's
obligation hereunder and/or seek any other remedies available at law or in
equity.
(c) If Buyer properly terminates this Agreement pursuant to a
right granted Buyer in Sections 5, 6, 7 or 13, or if Seller terminates this
Agreement pursuant to Section 8, then the Title Company shall deliver the
Xxxxxxx Money to Buyer whereupon neither Buyer or Seller shall have any further
rights or obligations hereunder.
15. Miscellaneous. Each of Buyer and Seller agrees with the other that
it has no present intention to make any public announcement of the purchase and
sale transaction contemplated hereby or of any of the terms thereof, and shall
obtain the written consent of the other party prior to making any public
announcement. Both Seller and Buyer shall cooperate with one another and in a
timely manner execute all documents reasonably required to give effect to the
purchase and sale provided for herein. Seller shall provide without cost or
expense, all documentation reasonably requested by Buyer after Closing in order
to comply with Buyer's disclosure and filing requirements under applicable
securities laws and shall execute all necessary consents in connection
therewith. If any provision of this Agreement is adjudicated by a court having
jurisdiction over a dispute arising herefrom to be invalid or otherwise
unenforceable for any reason, such invalidity or unenforceability shall not
affect the other provisions hereof. This Agreement shall be governed and
construed in accordance with the laws of the State of Texas. This Agreement is
the entire agreement between Seller and Buyer concerning the sale of the
Properties and no modification hereof or subsequent agreement relative to the
subject matter hereof shall be binding on either party unless reduced to writing
and signed by the party to be bound.
The provisions of Sections 3, 5, 7, 9, 10 and 12 shall survive Closing, but the
right to terminate this Agreement shall not survive Closing. Schedules 1, 2 and
3 and Exhibits A-J attached hereto are incorporated herein by this reference for
all purposes. Time is of the essence in the performance of each and every
provision of this Agreement. In the event that the last day for taking any
action or serving notice under this Agreement falls on a Saturday, Sunday or
legal holiday, the time period shall be extended until the following business
day.
16. Date of Agreement. All references in this Agreement to "the date
hereof" or similar references shall be deemed to refer to the last date, in
point of time, on which all parties hereto have executed and received a fully
executed copy of this Agreement. This Agreement constitutes an offer by Buyer to
purchase the Properties on the terms and conditions and for the Purchase Price
specified herein. Unless sooner terminated or withdrawn by notice in writing to
Seller in accord with Section 10, this offer shall lapse and terminate at the
close of Buyer's business day ten (10) days following execution of this
Agreement by Buyer and delivered in duplicate originals to Seller, unless, prior
to such time, Seller has returned to Buyer one (1) fully executed original of
this Agreement.
IN WITNESS WHEREOF, Buyer and Seller have executed this Agreement as of
the date and time shown by their respective signatures.
BUYER:
U.S. RESTAURANT PROPERTIES MASTER L. P.
By: QSV PROPERTIES, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SELLER:
HOME RUN ASSOCIATES
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
SARATOGA ASSOCIATES
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
LATHPAR CORPORATION
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
DELPAR CORPORATION
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
SCHENECPAR CORPORATION
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
M & D DEVELOPMENT
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
WESTMERE ASSOCIATES
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
WOLF ROAD ENTERPRISES
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
The undersigned hereby executes this Agreement for the sole purpose of
(i) acknowledging receipt of the Xxxxxxx Money and the Non-Refundable Xxxxxxx
Money; (ii) to evidence its agreement to hold the Non-Refundable Xxxxxxx Money
and the Xxxxxxx Money in trust for the parties hereto in accordance with the
terms of this Agreement; (iii) to pay such Non-Refundable Xxxxxxx Money and
Xxxxxxx Money out in accordance with the terms of this Agreement; (iv) to hold
such Xxxxxxx Money in an interest-bearing account; and (v) to otherwise comply
with the escrow conditions of this Agreement.
TITLE COMPANY:
LAWYERS TITLE INSURANCE CORPORATION
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
Date of Execution:
--------------
Attachments:
Schedule 1 - Selling Partnership and Property Description
Schedule 2 - Allocation of Purchase Price Among Sellers
Schedule 3 - Disclosure Schedule
Schedule 4 - Percentage Rents
Exhibit A - Intentionally Deleted
Exhibit B - Special Warranty Deed
Exhibit C - General Assignment
Exhibit D - Intentionally Deleted
Exhibit E - IRC Section 1445 Certification
Exhibit F - Assignment and Assumption of Lease Agreement
Exhibit G - Guaranty Agreement
Exhibit H - Investment Letter
Exhibit I - Registration Rights Agreement
Exhibit J - Tenant Estoppel Certificate
SCHEDULE 1
SELLING PARTNERSHIP AND PROPERTY DESCRIPTION
Selling Partnership Location
SCHEDULE 2
ALLOCATION OF PURCHASE PRICE AMONG SELLERS
Location and Allocated
Selling Partnership Units Cash Purchase Price
EXHIBIT A
PERSONAL PROPERTY
Intentionally Deleted
EXHIBIT B
SPECIAL WARRANTY DEED
_____________________________________________________________ ("Grantor")
for and in consideration of the sum of Ten Dollars ($10.00) cash and other good
and valuable considerations to it in hand paid by ("Grantee"), the receipt and
sufficiency of which are hereby acknowledged and confessed, hereby GRANTS,
SELLS, RELEASES and CONVEYS and by these presents does GRANT, SELL, RELEASE and
CONVEY unto Grantee the land described in Exhibit A attached hereto and made a
part hereof for all purposes, together with all improvements thereon
("Property"), subject to the matters described in Exhibit A attached hereto and
made a part hereof for all purposes ("Permitted Encumbrances").
TO HAVE AND TO HOLD the Property, together with all and singular the
rights and appurtenances thereto in anywise belonging unto the said Grantee, its
successors and assigns, forever, subject to the Permitted Encumbrances; and
Grantor does hereby bind itself, to WARRANT all and singular the said Property,
subject to the Permitted Encumbrances, unto the said Grantee, its successors and
assigns, against every person whomsoever lawfully claiming or to claim the same
or any part thereof, by, through, or under Grantor, but not otherwise.
That, in compliance with Section 13 of the Lien Law, the Grantor will
receive the consideration for this conveyance and will hold the right to receive
such consideration as a trust fund to be applied first for the purpose of paying
the cost of the improvement and will apply the same first to the payment of the
cost of the improvement before using any part of the total of the same for any
other purpose.
EXECUTED as of the ______ day of____________________, 1997.
-------------------------------------
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
STATE OF }
}
COUNTY OF }
This instrument was acknowledged before me on , 1997, by
____________________________, ____________________________ of , a
______________________________, on behalf of said _______________________.
Notary Public, State of
Attachments:
Exhibit A - Property Description and
Permitted Encumbrances
Grantee's Mailing Address:
-------------------------
-------------------------
-------------------------
-------------------------
EXHIBIT C
GENERAL ASSIGNMENT
THIS GENERAL ASSIGNMENT is made and entered into as of the __________
day of ___________________, 1997, by ("Seller"), to
________________________________________________ ("Buyer").
WHEREAS, Seller, by Special Warranty Deed dated of even date herewith,
has conveyed to Buyer the land described in Exhibit A attached hereto ("Land"),
and all improvements ("Improvements") located thereon. (The Land and
Improvements are referred to as the "Property"); and
WHEREAS, Seller and Buyer intend that Seller also convey to Buyer all
of the Conveyed Property (as hereinafter defined).
NOW, THEREFORE, Seller, for and in consideration of Ten Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged and confessed, hereby agrees as follows:
1. Seller has ASSIGNED, and by these present does hereby ASSIGN, to Buyer
all of Seller's interest in and to the following ("Conveyed Property"):
a. All agreements that relate to the ownership, maintenance and operation
of the Property ("Property Agreements") attached hereto as Exhibit A;
b. All plans, drawings, specifications, surveys, and other technical
descriptions;
c. All warranties with respect to the Property and the Conveyed Property as
are capable of assignment.
2. Buyer shall hold Seller harmless from, and indemnify Seller for and
against, any and all claims, loss, damage, liability, cost and expense
(including without limitation attorneys' fees) with respect to the Conveyed
Property occurring from and after the date hereof.
3. This Assignment shall be binding on Seller, its successors and assigns,
and shall inure to the benefit of Buyer, its successors and assigns.
4. To the extent that there are any, Buyer-Assignee hereby assumes the
obligations of the Seller-Assignor that accrue from and after the date hereof as
to such Property Agreement and warranties (exempting tradenames, trademarks and
other items of such nature) to the same extent that such obligation could be
enforced against the Seller-Assignor had this Assignment not been made.
EXECUTED as of the date first above written.
---------------------------------------------------
, Seller
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
U. S. RESTAURANT PROPERTIES MASTER L. P.
By: QSV PROPERTIES, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
EXHIBIT D
XXXX OF SALE
Intentionally Deleted
EXHIBIT E
IRC SECTION 1445 CERTIFICATION
SUBJECT PROPERTY: That certain tract of land ("Land"), situated in
State of __________________ described by
metes and bounds in Exhibit A attached hereto.
SELLER: _____________________________________
PURCHASER: U. S. RESTAURANT PROPERTIES MASTER L. P.
To inform Purchaser that the withholding of tax is not required upon the
disposition of a U. S. real property interest by Seller, the undersigned hereby
certifies the following:
1. Seller is not a foreign corporation, foreign partnership,
foreign trust or foreign estate (as those terms are defined in the
Internal Revenue Code and Income Tax Regulations);
2. Seller's U.S. employer identification number is
______________________, and
3. Seller's office address is .
Seller understands that this certification may be disclosed to the
Internal Revenue Service by Purchaser and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalties of perjury, I declare that I have examined this
certification and to the best of my knowledge and belief, it is true, correct
and complete, and I further declare that I have authority to sign this document.
EXECUTED this _______ day of __________________________, 1997.
---------------------------------------------------
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
EXHIBIT F
ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF LEASES is made and entered into as of the
______ day of ___________________, 1997, by _____________________________
("Assignor"), and U. S. RESTAURANT PROPERTIES MASTER L. P. ("Assignee").
W I T N E S S E T H :
WHEREAS, the Assignor is the lessor under the lease agreement between
___________________ and _____________________________ dated
______________________________ (the "Lease"), which Lease affects the real
property described in Exhibit A attached hereto and made a part hereof for all
purposes and the improvements thereon (the "Property"); and
WHEREAS, Assignor is selling the Property together with its interest
under the Lease to Assignee.
NOW THEREFORE, Assignor, for and in consideration of the sum of Ten and
No/100 Dollars ($10.00) and other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged and confessed, hereby agrees as
follows:
1. Assignor has ASSIGNED, and by these presents does hereby ASSIGN, to
Assignee, its successors and assigns all of its right, title and interest in and
to the Lease, and any funds or other collateral of the tenant deposited with
Assignor as security deposit pursuant to the Lease.
2. Assignee hereby assumes the obligations of Assignor as lessor under
the Lease accruing from and after the date hereof. Assignee shall hold Assignor
harmless from, and indemnify Assignor for and against, any and all claims, loss,
damages, liability, cost and expense (including attorneys fees) with respect to
the Lease arising or accruing from and after the date hereof. Assignor agrees to
hold Assignee harmless from and indemnify Assignee for and against, any and all
claims, loss, damages, liability, cost and expense (including attorney's fees)
with respect to the Lease arising or occurring prior to the date hereof.
3. This Assignment and Assumption of Lease shall be binding upon, and
shall inure to the benefit of, all of the parties hereto and their respective
successors and assigns.
EXECUTED as of the day and year first above written.
ASSIGNOR:
----------------------------------------------
Witnessed by: Address:
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
ASSIGNEE:
----------------------------------------------
Witnessed by: Address:
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
EXHIBIT G
GUARANTY AGREEMENT
This Guaranty Agreement ("Guaranty") is made as of the ________ day of
June, 1997, by U. S. RESTAURANT PROPERTIES MASTER L. P., a Delaware limited
partnership ("Guarantor"), with offices at 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxx,
Xxxxx 00000, to THE MIDON COMPANIES, a ____________________ ("Holder"), with
offices at _______________________, pursuant to the Purchase and Sale Agreement
between Guarantor and The Midon Companies, dated as of ___________________,
0000, (xxx "Xxxxxxxx Agreement").
1. Definitions. For purposes hereof, the following terms have the meanings
set forth below:
a. Closing Date. The Closing Date as defined in the Purchase Agreement.
b. Guaranteed Price. The product of (i) 113% multiplied by (ii) the average
closing price of the Units on the New York Stock Exchange for the five (5)
trading days immediately preceding the Closing Date.
c. Guaranteed Date. The date twenty-one (21) months following the Closing
Date; provided, however, that Guarantor, in its sole discretion, by written
notice to Holder on or before the Guaranteed Date, may extend the Guaranteed
Date to the date twenty-four (24) months following the Closing Date.
d. Actual Price. The average closing price of the Units on the New York
Stock Exchange for the twenty (20) trading days immediately preceding the
Guaranteed Date.
e. Number of Units. The number of units of limited partnership of Guarantor
issued to Holder on the Closing Date and held on the Guaranteed Date.
f. Unit. Unit shall mean a depositary receipt evidencing ownership of one
share of limited partnership interest of Guarantor.
g. Sale of Units. The sale or other disposition of Units other than any
transfer by operation of law, such as by will or intestate disposition, any
transfer by gift or any transfer for which the consideration is not payable in
cash or cash equivalents.
h. Affiliates. Any person who controls, is controlled by, or is under
common control with Holder, with control being defined as the ownership of ten
percent (10.0%) or more of equity ownership or voting control of any such
person, any partner of Holder, and any immediate family member of a partner of
Holder.
2. Guaranty. If, as of the Guaranteed Date, the Guaranteed Price exceeds
the Actual Price, Guarantor shall issue an amount of additional Units to Holder
equal to the following: [(Guaranteed Price - Actual Price) x Number of Units] /
Guaranteed Price. Any additional Units issued under this Section 3 shall be
delivered to Holder on or before five (5) days after the Guaranteed Date.
The additional Units issued under this Guaranty will not be registered,
and shall be subject to the transfer restrictions under U. S. and state
securities laws. Guarantor will effect registration of any Units delivered
pursuant to this Guaranty within 180-days after delivery. Guarantor may, at its
election, pay Holder in cash the difference between the Guaranteed Price and the
Actual Price in lieu of delivery of additional Units.
3. Trading and Other Activity Prior to the Guaranteed Date. This
Guaranty will lapse in its entirety, and be of no further force and effect, if
Holder and its Affiliates makes any Sales of Units (whether or not received
under the Purchase Agreement) or otherwise engages in any manipulative
transaction with respect to the trading in the Units, in the period four (4)
months preceding the Guaranteed Date.
4. Stock Splits, Dividends, Conversions. The Guaranteed Price and
Actual Price will be appropriately adjusted for stock dividends, stock splits,
etc. In the event that Guarantor converts to a qualified Real Estate Investment
Trust, any stock received in exchange for the Units will be considered the
equivalent of the Units for purposes of the Guaranty.
5. Termination of Guaranty. This Guaranty will terminate in its
entirety and be of no further force and effect, if during any twelve (12) month
period between the Closing Date and Guaranteed Date, Holder and its Affiliates
make a Sale or Sales of Units which, in the aggregate, constitute more than ten
percent (10.0%) of the total Units owned by Holder and its Affiliates as of the
first day of such twelve (12) month period.
In Witness Whereof, the parties have executed this Agreement as of the
date and year first above written.
GUARANTOR:
U. S. RESTAURANT PROPERTIES MASTER L.P.
By: QSV PROPERTIES, INC.
By:
-----------------------------------
Name:
----------------------------------
Its:
-----------------------------------
HOLDER:
---------------------------------------
By:
------------------------------------
Name:
----------------------------------
Its:
----------------------------------
EXHIBIT H
INVESTMENT LETTER
_________________________, 1997
The Midon Companies (or to each Seller)
Gentlemen:
U. S. Restaurant Properties Master L. P., a Delaware limited
partnership ("MLP") with offices at 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx
00000, has entered into a purchase and sale agreement with you dated
_________________, 1997, (the "Contract") pursuant to which you will receive, as
partial consideration for such sale, _________ units (the "Units") of limited
partnership interest in MLP.
In connection with your receipt of the Units, you hereby represent and
warrant to MLP the following:
(a) The Units to be acquired pursuant to the Contract are being
acquired for my own account for investment and not with a view to the
distribution thereof or with any intention of distributing or reselling such
Units or any part thereof within the meaning of the Securities Act of 1933, as
amended (the "1933 Act") (it being understood, however, that the disposition of
the undersigned's property shall at all times be within the undersigned's
control). The undersigned understands that MLP will place a "stop transfer"
order on the transfer books of MLP to prevent any transfer of the Units in
violation of law or this Letter Agreement.
(b) The Units have not been registered under the 1933 Act and,
therefore, cannot be sold unless they are registered under the 1933 Act or
unless an exemption from registration is available; a legend to that effect
shall be placed on the certificate or certificates evidencing the Units; there
is no public market for the Units and none is expected to develop; and that it
may be necessary to hold the Units indefinitely and the undersigned must
continue to bear the economic risk of the investment in the Units unless the
Units are subsequently registered under the 1933 Act or an exemption from
registration becomes available.
(c) I am sophisticated in the making of investments and in the purchase
of securities and meet the requirements as to net worth and/or income to be a
"sophisticated investor" as that term is defined in the regulations adopted
pursuant to the 1933 Act.
(d) I have reviewed financial and other information provided to me by
MLP (including the most recent 10 Q's and other regulatory filing of MLP) and
understand and can accept the total loss of my investment. Further, the
undersigned represents and warrants that my accounting and legal representatives
and I have had the opportunity to ask questions of the officers of MLP.
When accepted by MLP, MLP represents and warrants to the undersigned as
follows:
(a) MLP has been duly constituted as a limited partnership and is
validly existing in good standing under the laws of the State of Delaware, with
limited partnership power and authority to own its properties and conduct its
businesses.
(b) MLP has all requisite partnership power and authority to enter into
this Letter Agreement and to perform its obligations hereunder. The execution,
delivery and performance by MLP of this Letter Agreement and the consummation by
it of the transactions contemplated hereby have been duly authorized by all
necessary limited partnership actions. This Letter Agreement has been duly
executed and delivered by MLP and is a valid and binding agreement of MLP
enforceable against it in accordance with its terms.
This Letter Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors, heirs and permitted assigns,
but neither this Letter Agreement nor any of the rights, interest or obligations
hereunder shall be assigned by either of the parties hereto without the prior
written consent of the other party which shall not be unreasonably withheld.
Nothing in this Agreement, expressed or implied, is intended to confer
on any person other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations or liabilities under or by reason of
this Letter Agreement.
This Agreement shall be governed by and interpreted in accordance with
the laws of the State of Texas without regard to the conflict of laws thereof.
Very truly yours,
Dated: U. S. RESTAURANT PROPERTIES MASTER L. P.
-------------------- By: QSV PROPERTIES, INC.
By:
-------------------------------------------
Its:
------------------------------------------
Accepted and Agreed to:
--------------------------
By:
-----------------------
Date:
---------------------
EXHIBIT I
REGISTRATION RIGHTS AGREEMENT
This Agreement (the "Agreement") is made as of the _______ day of
___________________, 1997, by U. S. RESTAURANT PROPERTIES MASTER L. P., a
Delaware limited partner ("USRP") with offices at 0000 Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxx, Xxxxx 00000, and __________________________ ("Holder") with offices at
_________________.
Recitals:
Holder received _____ units of limited partnership interest in USRP
pursuant to the Purchase and Sale Agreement (the "Contract") between Holder and
USRP dated _______________, 1997; and
USRP has agreed to register Holder's units under certain circumstances.
NOW, THEREFORE, for good and valuable consideration, the sufficiency of
which is hereby expressed, the parties hereto hereby agree as follows:
1. If, from time to time during the period three (3) years from the
Closing Date defined in the Contract (the "Registration Period"), U. S.
Restaurant Properties Master L. P. ("USRP") determines to effect a registration
under the 1933 Act in connection with the public offering of Units for cash
proceeds payable to USRP or to any Unit holder ("Offering Shares"), then USRP
shall give prompt written notice ("Registration Notice") to the Holder of USRP's
intent to proceed with such registration and offering of the Offering Shares. No
provision of this Section 5(a) shall create, or shall be construed as creating,
any obligation of USRP to (i) proceed with any public offering during the
Registration Period, or (ii) maintain the effectiveness of any registration
statement registering Offering Shares for any period of time.
2. If within five (5) days (the "Final Request Date") after the receipt
of the Registration Notice, Holder shall deliver to USRP a written request to
have some or all of its Units in USRP included in the registration, then USRP
shall cause to be registered under the 1933 Act the number of Units so requested
in accordance with this Agreement (the "Piggyback Shares"). The Holder shall not
be entitled to proceed with a registration and offering of the Piggyback Shares
unless USRP proceeds with the registration and offering of the Offering Shares.
If Holder declines to participate in the offering, USRP shall have no further
registration obligation with respect to Holder.
3. The underwriter(s), investment banker(s) and/or managers(s) for any
offering pursuant to this Section 5 shall be selected by USRP in its sole
discretion. If the registration involves an underwritten offering, all
participating interest holders must sell their Piggyback Shares to the
underwriters selected by USRP on the same terms and conditions as apply to
Holder and any other selling interest holder with such differences, including
any with respect to indemnification and liability insurance, as may be usual and
customary in combined primary and secondary offerings. If the managing
underwriter of the public offering of Offering Shares proposed to be registered
by USRP or by another interest holder in USRP having been granted registration
rights by USRP advises USRP in writing that marketing factors requires a
limitation of the number of secondary shares to be underwritten, then the number
of Units owned by Holder to be included in such registration statement and the
number of Units in USRP to be included in such registration statement by any
other interest holder in USRP having been granted registration rights by USRP
before or after the date of this Agreement other than Holder (collectively
"Registration Rights Interest Holders") shall be limited, pro rata, based on a
fraction, the numerator of which shall be the number of Units in USRP that
Holder shall have requested to be registered, or in the case of Registration
Rights Interest Holders, the number of Units that such Registration Rights
Interest Holders shall have requested to be registered, and the denominator of
which shall be the total number of Units in USRP requested to be registered by
Holder and Registration Rights Interest Holders. It is the intention of the
parties that the Piggyback or incidental registration rights of Holder shall be
pari passu with any "piggyback" or incidental registration rights of any
Registration Rights Interest Holder.
4. Notwithstanding Section 1 through 3 hereof, USRP shall effect
registration of Holder's Units under the 1933 Act within 180 days after the date
of this Agreement. Holder shall cooperate with USRP in effecting such
registration.
5. Each of USRP, Holder and any Registration Rights Interest Holders
shall pay their own expenses incurred in the registration of the Offering Shares
and Piggyback Shares.
HOLDER:
-----------------------------------------
By:
--------------------------------------
Name:
------------------------------------
Its:
-------------------------------------
U. S. RESTAURANT PROPERTIES MASTER L.P.
By: QSV PROPERTIES, INC.
By:
--------------------------------------
Name:
------------------------------------
Its:
-------------------------------------
EXHIBIT J
ESTOPPEL CERTIFICATE
This Certificate is made as of ___________________________________,
1997, by ("Tenant").
A. The Property; the Leased Premises. The term "Property," as used
herein, shall mean the real property situated in the County of
____________________, State of ____________________, legally described in
Exhibit A attached hereto and by this reference made a part hereof, together
with all buildings, structures, improvements and fixtures now or hereafter
located thereon, and together with all easements and other rights appurtenant
thereto.
B. The Lease; the Landlord. The term "Lease," as used herein, shall
mean the lease, together with any amendments thereto, concerning the Leased
Premises evidenced by the document attached hereto as Exhibit B and by this
reference incorporated herein. The term "Landlord", as used herein, shall mean
______________________________________.
C. The Sale. The term "Buyer," as used herein, shall mean U. S.
Restaurant Property Master L. P., its successors and assigns. Buyer proposes
to purchase the Property from Landlord.
D. Purposes. In connection with the above-mentioned transactions, Buyer
has requested certain assurances and representations from Tenant, and Landlord
has agreed to provide for an estoppel certificate from Tenant concerning the
Lease.
In consideration of the mutual terms and provisions hereinafter
contained and other good and valuable consideration received the receipt and
sufficiency of which are hereby acknowledged, Tenant certifies and agrees as
follows:
(a) Tenant is the tenant and Landlord is the landlord under
the Lease. A true and complete copy of the Lease, together with all riders,
exhibits, modifications and amendments thereto, if any, are attached hereto as
Exhibit B;
(b) The term of the Lease commenced ______________________,
and rent commenced to accrue under the Lease on ______________________;
(c) There are presently no offsets or credits against rents
thereunder and no payments are due from Landlord to Tenant under the Lease;
(d) The Lease is in full force and effect and, except as set
forth in the amendment(s), if any, attached hereto, the Lease has not been
amended, modified or supplemented in any respect;
(e) All of the improvements contemplated by the Lease have
been entirely completed as required therein, the leased premises and the
improvements thereon have been accepted by Tenant with Tenant in occupancy
thereof, and all sums, if any, payable by Landlord to Tenant in connection with
the construction of such improvements have been paid in full and all conditions
precedent to Tenant's obligations under the Lease have been satisfied;
(f) Tenant has not prepaid (and will not prepay) any rent
which is not yet due and payable under the Lease and no concessions, rebates,
allowances or other considerations for free or reduced rent in the future have
been granted other than as set forth in the Lease as attached hereto;
(g) Tenant has no knowledge of (1) any present defaults of
either party under the Lease; nor (2) any present condition or state of facts
which by notice or the passage of time, or both, would constitute a default by
either party under the Lease;
(h) Tenant has never permitted (and has no knowledge that
Landlord has ever permitted) the generation, treatment, storage or disposal of
any hazardous waste or other hazardous or toxic substance on the Property in
violation of existing laws;
(i) Landlord holds $__________________ as security deposits
or other deposits of Tenant under the Lease;
(j) The party executing this letter on behalf of Tenant is
fully authorized and empowered to do so.
Tenant acknowledges Buyer will rely upon the matters set forth herein
in acquiring the Property. This Certificate shall inure to the benefit of, and
may be relied upon by, Buyer, its successors and assigns.
TENANT:
-----------------------------------------
By:
--------------------------------------
Its:
-------------------------------------
Address:
---------------------------------
