FIRST AMENDMENT
TO
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
SYBRA, INC., VALCOR, INC.
AND
U.S. RESTAURANT PROPERTIES MASTER L.P.
THIS FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT BETWEEN SYBRA, INC.,
VALCOR, INC. AND U.S. RESTAURANT PROPERTIES MASTER dated and effective as of
April 18, 1997 (the "Amendment") is by and between U.S. RESTAURANT PROPERTIES
MASTER L.P., a Delaware limited partnership (the "Buyer"), SYBRA, INC., a
Michigan corporation (the "Seller") and VALCOR, INC., a Delaware corporation and
the sole stockholder of Seller ("Valcor"). The Buyer and the Seller are referred
to individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, Seller, Buyer and Valcor entered into an Asset Purchase Agreement
dated as of December 23, 1996 (the "Purchase Agreement"); and
WHEREAS, Seller, Buyer and Valcor desire to amend certain provisions of the
Purchase Agreement as set forth in this Amendment;
COVENANTS
NOW, THEREFORE, in consideration of the foregoing, and in further
consideration of the mutual covenants and considerations herein contained, the
Parties hereby agree as follows:
1. Schedule 1. Schedule 1 attached to the Agreement is hereby deleted and
Schedule 1 attached hereto is substituted for the original Schedule 1 and
incorporated into the Agreement as if attached thereto.
2. Schedule 2. Schedule 2 attached to the Agreement is hereby amended by
inserting after the phrase "Schedule 1.1", the phrase ", the leases related to
Units 630, 785, 899, 984, 1253, 1254, 1313, 1330, 1405, 1434 and the Other
Leases (as defined on Schedule 1.1), if any, on Schedule 1.1". Schedule 2 is
further amended by deleting the reference to "6236 and 731".
3. Schedule 3. Schedule 3 attached to the Agreement is hereby deleted and
Schedule 3 attached hereto is substituted for the original Schedule 3 and
incorporated into the Agreement as if attached thereto. For all purposes related
to the Agreement, the term "Agreed Value" shall mean and refer to such
information as set forth on Schedule 3 attached hereto.
4. Exhibit A. Exhibit A is amended by inserting in Section 1(c) after the
phrase "Schedule 1.1", the phrase ", the leases related to Units 630, 785, 899,
984, 1253, 1254, 1313, 1330, 1405, 1434 and the Other Leases on Schedule 1.1,
provided however, in the event that Buyer assigns the right to acquire such
leases pursuant to Section 10(d), the assignee rather than the Buyer shall
assume the obligations under
such leases pursuant to documents satisfactory to Buyer and Seller".
Exhibit A is further amended by deleting the reference to Units 6236 and 731.
5. Exhibit C. Exhibit C attached to the Agreement is hereby amended by
inserting under Section 3(c) thereof the following:
"Consents required for assignment and sublease of sandwich leases:
Xxxx 000 Xxxx 000
Xxxx 000 Xxxx 0000
Xxxx 000 Xxxx 0000"
Unit 984
Exhibit C attached to the Agreement is further amended by inserting under
Section 3(f)(ii) thereof the following:
"List of Sandwich Leases by title, parties and date.
1. #000 - 0000 Xxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxx.
Lease by and between Xxxx Xxxxx Xxxxxx and Sybra,
Inc., dated March 1, 1977.
2. #899 - 0000 Xxxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxx.
Lease by and between Westwood Financial
Corporation and Sybra, Inc., as successor by merger to
Sybsidiary, Inc., dated August 13, 1981.
3. #984 - X-0000 Xxxx Xxxxxxx Xxxx, Xxxxx, Xxxxxxxx.
Lease by and between Wolverine Properties, Ltd.,
as successor to Empire Management Services, Ltd. and Sybra,
Inc., dated October 1, 1978.
4. #1172 - 00 Xxxxx 00xx Xxxxxx, Xxxx Xxxx,
Xxxxxxxxxxxx.
Lease Agreement by and between Mid-Island
Properties, Inc. and Sybra, Inc., dated December 7, 1978.
5. #1253 - 0000 Xxxx Xxxx Xxxx Xxxx, Xxxx, Xxxxxxxx.
Lease by and between Xxxx X. Xxxxx Trust, as
successor to Norbob Enterprises, Inc. and Sybra, Inc., as
successor by merger to Sybsidiary, Inc., dated June 26, 1981.
6. #1254 - 00000 Xxxxxxxxx Xxxxxxx, Xx. Xxxxxxx,
Xxxxxxxx.
Lease by and between Xxxxx Xxxxxxx, as successor
to Norbob Enterprises, Inc. and Sybra, Inc., as successor to
Sybsidiary, Inc., dated June 26, 1981.
7. #1313 - 000 Xxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxx.
Lease by and between Xxxxxx Xxxxxx, as successor
to Pacific Realty Fund and Sybra, Inc., as successor by merger
to Sybsidiary, Inc., dated June 30, 1981.
8. #1330 - 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx.
Lease by and between Xxxxxx Xxxx, as successor to
Pacific Realty Fund and Sybra, Inc., as successor by merger to
Sybsidiary, Inc., dated June 30, 1981.
9. #1405 - 0000 Xxxxxxxxx Xxxx Xxxx., Xxxxxxxx,
Xxxxx.
Lease by and between Xxxxxx Xxxx, as successor to
Pacific Realty Fund and Sybra, Inc., as successor by merger to
Sybsidiary, Inc., dated June 30, 1981.
10. #1434 - 0000 Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxx.
Lease by and between Xxxxxx Xxxx, as successor to
Pacific Realty Fund and Sybra, Inc., as successor by merger to
Sybsidiary, Inc., dated June 30, 1981.
11. If necessary consents are obtained, #000 - 0000
Xxxxxxxxx Xxxxxxx, Xxxx Xxxxx, Xxxxx.
Lease by and between JaGee Properties, Inc. and
Sybra, Inc., dated May 1, 1980.
12. If necessary consents are obtained, #995 - 47540
Xxx Xxxx, Utica, Michigan.
Lease by and between GISA Associates and Sybra,
Inc., dated April 20, 1978.
13. If necessary consents are obtained, #0000 - Xxxx
Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxx Xxxxxx, XX.
Lease by and between Mid-Island Properties,
Inc. and, initially, Cumberland County Industrial Development
Authority, dated December 7, 1978.
14. If necessary consents are obtained, #0000 -
Xxxxxxxxxxx Xxxxxx, Xxxxxx, XX.
Lease by and between Texas Commerce Bank
National Association and Sybra, Inc., dated August 14, 1989."
Exhibit C attached to the Agreement is further amended by
deleting under Section 3(f)(ii) thereof "Ground Lease between
Forest & Xxxxx Lanes Shopping Centers, Ltd./Forest & Xxxxx
Lanes Development Corporation/Park Forest Properties, Inc. and
Sybra, Inc. dated September 1, 1993."
6. Section 2(d). Section 2(d) of the Agreement is
amended by deleting the phrase "January 31, 1997 except that,
by written notice to Buyer, Seller
may extend such date for up to fifteen (15) days in order to
obtain Required Consents" and substituting the phrase
"April 30, 1997."
7. Section 2(e). Section 2(e) of the Agreement is
amended by inserting at the end of subsection (B) the phrase
"and each lease for Units 630, 899, 984, 1172, 1253, 1254,
1313, 1330, 1405, 1434 and the Other Leases".
8. Section 7(a). Section 7(a) of the Agreement is
hereby amended by renumbering existing subsection (xiii) as
new subsection (xiv) and by inserting a new subsection (xiii)
as follows:
"(xiii) Simultaneously with the Closing, Seller and Buyer
shall enter into a sublease by Buyer to Seller of Units 630, 785, 899,
984, 1253, 1254, 1313, 1330, 1405, 1434 and the Other Leases, which
sublease shall be in form and substance reasonably satisfactory to
Buyer and Seller."
9. Section 7(b). Section 7(b) of the Agreement is hereby amended by
renumbering existing subsection (ix) as new subsection (x) and by inserting a
new subsection (ix) as follows:
"(ix) Simultaneously with the Closing, Seller and Buyer shall
enter into a sublease by Buyer to Seller of Units 630, 785, 899, 984,
1253, 1254, 1313, 1330, 1405, 1434 and the Other Leases, which sublease
shall be in form and substance reasonably satisfactory to Buyer and
Seller."
10. Section 10(d). Section 10(d) is hereby amended by adding the following
to the end of such sections:
"Notwithstanding the foregoing, Buyer will assign at closing its rights
and obligations (i) to USRP (Sybra), LLC relating to Xxxxx 000, 000,
000, 000, 785, 899, 984, 995 and 1405, (ii) to USRP (XxxXxx), LLC
relating to Units 1172, 1253, 1254, 1313, 1330, 1434, 5516 and 6285,
and (iii) to U.S. Restaurant Properties Operating L.P. with respect to
all other Acquired Assets, all of the foregoing subject to execution of
such documentation, including without limitation, assumption
agreements, in form and substance reasonably satisfactory to Seller."
11. Except as amended, modified or supplemented by this Amendment, the
parties confirm and ratify the terms and provisions of the Purchase Agreement.
* * * * *
IN WITNESS WHEREOF, this Amendment is entered into by the duly
authorized representatives of the parties hereto as of the date first above
written.
SYBRA, INC., a Michigan corporation
By:
---------------------------------------
Title:
------------------------------------
VALCOR, INC., a Delaware corporation
By:
---------------------------------------
Title:
------------------------------------
X.X.XXXXXXXXXX PROPERTIES MASTER L.P.,
a Delaware limited partnership
By: U.S. Restaurant Properties, Inc.
By:
---------------------------------------
Title:
------------------------------------
SCHEDULE 1
ACQUIRED ASSETS
For purposes of this Agreement, "Acquired Assets" means all of the Seller's
right, title and interest in and to the following:
(a) the Real Property owned or leased by the Seller and listed on the
attached Schedule 1.1 incorporated herein by this reference; provided,
however, units 731 and 6236 on Schedule 1.1 shall be deemed omitted and
shall not be part of the Acquired Assets.
(b) all improvements, fixtures, and fittings on the Real Property
listed on Schedule 1.1 which improvements, fixtures, and fittings are
permanently attached to the Real Property and the removal of which
would cause material damage to the Real Property. In no event will
improvements, fixtures, and fittings include (without limitation) any
of the following: seating, booths, awnings, refrigeration equipment not
involving roof penetration, signage or menus.
(c) the leases for the following units: ##630, 785, 899, 984, 1253,
1254, 1313, 1330, 1405, 1434 together with the leases on the following
units for which Seller has obtained all necessary consents to permit
Buyer to assign such leases to Buyer's Affiliate(s) on or before the
Closing Date: ##518, 995, 1172 and 5711 (the "Other Leases"). If any
consent relating to one or more of the Other Leases is not obtained
before the Closing Date, Seller shall use its best efforts to obtain
such consent after the Closing Date, and shall assign such Other
Lease(s) to Buyer's affiliate (for no additional consideration) upon
receipt of such consent. If any consent relating to one or more of the
Other Leases is not obtained within four (4) weeks after the Closing
Date, Seller shall cooperate with Buyer in substituting other leased
properties reasonably acceptable to Buyer for any of the Other Leases
for which consents were not obtained. The obligations contained in this
Schedule 1 shall survive the Closing Date, notwithstanding anything to
the contrary in the Agreement.
SCHEDULE 3
AGREED VALUE
