EXHIBIT 2.9
AGREEMENT REGARDING PARTIAL ASSIGNMENT AND ASSUMPTION
OF RIGHTS AND OBLIGATIONS
UNDER REAL ESTATE PURCHASE AGREEMENT
This Agreement Regarding Partial Assignment and Assumption of Rights
and Obligations Under Real Estate Purchase Agreement ("Agreement") is entered
into as of December 10th, 1996, by and between SYDRAN DEVELOPMENT
CORPORATION, a California corporation ("Assignor"), and U.S. RESTAURANT
PROPERTIES OPERATING L.P., a Delaware limited partnership ("Assignee"), who
agree as follows:
RECITALS
A. Reference is made to that certain Real Estate Purchase and Sale
Agreement (Existing Restaurants) entered into as of June 15, 1996, by and
among Snowstate Restaurant Corporation and Franklin Restaurant Corporation
(together, "Seller"), as seller, and Assignor, as buyer, as amended and
reinstated pursuant to that Reinstatement and Amendment Agreement (Real
Estate Purchase Agreement -- Existing Restaurants) entered into as of August
22, 1996, by and among Seller and Assignor (as so amended, the "ERPA").
Pursuant to the ERPA, Assignor has the right to purchase from Seller seven
(7) parcels of improved real property on which are located existing Chili's
Restaurants in the states of Arkansas, Idaho, Nebraska, New Mexico, Utah and
Wyoming, as identified on the attached EXHIBIT A and as more particularly
described in the ERPA (the "Real Property"). Seller and Assignor have also
entered into an Asset Purchase and Sale Agreement and a Real Estate Purchase
and Sale Agreement (Development Parcels), both of which have also been
amended and reinstated as of August 22, 1996 (as so amended, the "Related
Agreements"), for the purchase and sale of certain existing and proposed
Chili's Restaurants and assets and real estate interests related thereto (the
"Restaurant Assets"). Capitalized terms used in this Agreement and not
otherwise defined herein shall have the meanings set forth in the ERPA.
B. Assignee has received and reviewed copies of the ERPA and the
Related Agreements, together with all exhibits thereto.
C. Assignor has the right to conduct due diligence investigations with
respect to the Real Property and the Restaurant Assets under the terms of the
ERPA and the Related Agreements in order to determine whether Assignor
desires to acquire the Restaurant Assets and to operate the Restaurants on
the Real Property.
D. The obligations of Assignor under the ERPA and the Related
Agreements to purchase some or all of the Real Property and Restaurant Assets
may be terminated in certain circumstances as more particularly set forth in
the ERPA and the Related Agreements.
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E. If, based on such due diligence, Assignor determines that (i) Assignor
desires to acquire some or all of the Restaurant Assets in order to operate the
Restaurants on the related Real Property and (ii) the Real Property is
acceptable for the operation of the Restaurants, Assignor desires to assign to
Assignee Assignor's rights and obligations to purchase six (6) of the seven (7)
parcels of the Real Property and to have Assignee purchase such Real Property
and lease such Real Property to Assignor, and Assignee desires to assume
Assignor's rights and obligations to purchase such Real Property and to purchase
such Real Property and lease such Real Property to Assignor, all on the terms
and conditions set forth in this Agreement.
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt and
sufficiency of which are hereby acknowledged, Assignor and Assignee agree as
follows:
1. DESIGNATION OF REAL PROPERTY.
1.1 DESIGNATED PARCELS. If Assignor and Seller determine, in the
exercise of their respective rights under the ERPA in such a manner as Assignor
and Seller may, in their sole and absolute discretion, determine, that all seven
(7) of the parcels of Real Property are to be acquired, those six (6) parcels of
the Real Property identified as "Designated Parcels" on EXHIBIT A shall be
subject to, and acquired by Assignee under, this Agreement, and shall be
referred to herein as the "Designated Parcels." The seventh parcel of Real
Property, which is located in St. Xxxxxx, Utah (the "Retained Parcel"), shall
not be subject to this Agreement but shall either (i) be acquired by Assignor or
another assignee of Assignor pursuant to the ERPA or (ii) be made subject, by
amendment of the ERPA and the Related Agreements, to one of the Related
Agreements and acquired by Assignor or another assignee of Assignor pursuant
thereto. Assignee hereby approves of such proposed amendments of the ERPA and
the Related Agreements to remove the Retained Parcel from the ERPA and to make
other modifications to the ERPA and Related Agreements, provided that such other
modifications do not materially affect Assignee's rights or obligations
hereunder. If the ERPA and the Related Agreements are so amended, the terms
"ERPA" and "Related Agreements," as used in this Agreement, shall refer to the
ERPA and the Related Agreements as so amended. Assignor shall promptly provide
Assignee with copies of any such amendments.
1.2 DELETION OF DESIGNATED PARCELS BY ASSIGNOR. If Assignor and/or
Seller determine, in the exercise of their rights under the ERPA in such a
manner as Assignor and Seller may, in their sole and absolute discretion,
determine, that one (1) or more of the Designated Parcels shall be deleted from
the Real Property to be acquired under the ERPA, Assignor shall promptly notify
Assignee of such deletion. Any such parcel(s) so deleted (individually, a
"Deleted Parcel" and collectively, the "Deleted Parcels") shall no longer be
part of the Designated Parcels and the term "Designated Parcels" shall
thereafter include only the remaining Designated Parcels not so deleted. In the
event any Designated Parcel is so deleted, Assignee shall have no right under
Section 4.09 of the ERPA or
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otherwise, to lease such Deleted Parcel from Seller or to otherwise acquire
any interest in such Deleted Parcel. Provided, however, that if Assignor
deletes more than three (3) Designated Parcels from the Real Property to be
acquired under the ERPA, Assignee may, in its discretion, terminate this
Agreement by delivering written notice of termination to Assignor within two
(2) business days following Assignee's receipt of notice of the deletions by
Assignor.
2. ASSIGNEE'S DUE DILIGENCE.
2.1 ASSIGNOR'S DELIVERY OF MATERIALS. Assignor has provided to
Assignee, or has caused to be provided to Assignee, copies of: (i) those
Title Reports (together with copies of documents identified therein), Surveys
and Environmental Reports reviewed by Assignor in the course of Assignor's
due diligence regarding the Designated Parcels; (ii) such other documents
reviewed by Assignor in the course of Assignor's due diligence regarding the
Designated Parcels as may have been requested by Assignee; (iii) any
summaries of such reviewed documents prepared by Assignor; and (iv) any
notices of Defects delivered by Assignor to Seller under the ERPA. Assignee
acknowledges and agrees that: (vv) Assignor's delivery of such materials is
for the convenience of Assignee only; (xx) except as expressly set forth in
this Agreement, neither Assignor nor its agents or representatives has made,
and Assignee is not relying on and has not been induced by, any
representations, warranties or statements, express or implied, regarding the
Real Property, the Designated Parcels, or the accuracy or effect of any due
diligence materials provided by Assignor to Assignee hereunder; (yy) Assignee
will rely solely on its own due diligence investigations, inspections and
reviews with respect to the physical condition, state of title, environmental
and other matters relating to the Designated Parcels; and (zz) Assignee is
experienced, knowledgeable and sophisticated in the acquisition and ownership
of restaurant properties. Without limiting the generality of the foregoing,
Assignee acknowledges and agrees that any and all summaries of due diligence
investigations prepared by Assignor and provided to Assignor hereunder are
provided solely at the request and for the convenience of Assignee, and
Assignor makes no representations or warranties as to the completeness or
accuracy thereof or of any conclusions or recommendations set forth therein.
2.2 DEFECTS IDENTIFIED BY ASSIGNEE. Assignee's review of such
information has revealed certain conditions about the Designated Parcels that
are unacceptable to Assignee (the "Defects"), and Assignee has, by copy of
its letters to Chicago Title Company, Assignor and Asssignor's surveyors
dated December 3, 1996, notified Assignor of such Defects. If Assignor
notifies Assignee, within two (2) business days following the date of this
Agreement, that such Defects will be cured prior to the Closing under the
ERPA, Assignor shall cause such Defects to be so cured. If Assignor fails to
notify Assignee within such two business day period that all such Defects
will be cured prior to the Closing under the ERPA, the Designated Parcel(s)
subject to the uncured Defect(s) shall, unless the Defect is waived in
writing by Assignee within one (1) business day following the expiration of
such two business day period, be deleted as a Designated Parcel, in which
event the term "Designated Parcels" shall thereafter include only the
remaining
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Designated Parcels not so deleted. Any such Designated Parcels deleted by
Assignee may, in Assignor's discretion, still be purchased by Assignor under
the ERPA, and, in such event, shall be referred to in this Agreement as
"Retained Parcels."
3. ASSIGNMENT AND ASSUMPTION OF ERPA. Conditioned upon, subject to and
concurrent with the Closing under the ERPA, Assignor shall grant, convey,
transfer and assign to Assignee Assignor's right, title and interest under
the ERPA with respect to the Designated Parcels, including, without
limitation, the right to purchase the Designated Parcels from Seller.
Assignor shall retain all right, title and interest under the ERPA with
respect to the purchase of the Retained Parcels, if any. With regard to the
Designated Parcels to be purchased by Assignee, Assignee hereby agrees that
the purchase shall be in accordance with the terms and provisions of the ERPA
and that Assignee shall, at the Closing and with respect to the Designated
Parcels: (i) accept the foregoing assignment; (ii) substitute itself as the
"Buyer" under the ERPA; (iii) assume, perform, fulfill and be bound by all of
the terms, covenants, conditions, obligations and agreements contained in the
ERPA as a direct obligation to Seller, except as otherwise provided elsewhere
in this Agreement; and (iv) indemnify, defend, protect and hold Assignor
harmless from and against any and all liabilities, costs, expenses
(including, without limitation, attorneys' fees and costs), claims, actions,
causes or action, demands, losses, damages, penalties and judgments relating
to Assignee's obligations under this Agreement or under the ERPA, or from any
breach thereof. The obligations of Assignee under this SECTION 3 shall be
conditioned on Assignee's receipt of reasonably satisfactory evidence that
Sydran Food Services III, L.P. has, or will have, equity capital of at least
$8,500,000 as of the Closing. Any and all representations, warranties,
covenants or obligations made or undertaken by Seller under the ERPA shall be
made and undertaken solely by Seller and, except as expressly set forth in
this Agreement, Assignor does not make or undertake any such representations,
warranties, covenants or obligations to Assignee, nor shall Assignor be
liable to Assignee for any breach or nonperformance thereof by Seller.
Assignor shall indemnify, defend, protect and hold Assignee harmless from and
against any and all liabilities, costs, expenses (including, without
limitation, attorneys' fees and costs), claims, actions, causes or action,
demands, losses, damages, penalties and judgments relating to Assignor's
obligations under this Agreement or under the ERPA, or from any breach
thereof.
4. PURCHASE PRICE.
4.1 PURCHASE PRICE. Any provisions of the ERPA to the contrary
notwithstanding, if all six (6) of the Designated Parcels identified on
EXHIBIT A are purchased by Assignee, the portion of the Purchase Price to be
paid by Assignee for the Designated Parcels under the ERPA shall be Nine
Million Dollars ($9,000,000), as such amount may be adjusted pursuant to
Section 1.13 of the ERPA and subject to any appropriate prorations, debits or
credits in accordance with Sections 1.10, 1.11 and/or 4.04 of the ERPA.
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4.2 REDUCTION OF PURCHASE PRICE. If any of the Designated Parcels
are deleted pursuant to the provisions of this Agreement, the Purchase Price
to be paid by Assignee for the remaining Designated Parcels shall be reduced
by the amount by which the Purchase Price would be reduced under Sections
4.08 and 4.09 of the ERPA if such parcel(s) were deleted therefrom.
4.3 ALLOCATION OF PURCHASE PRICE. The total Purchase Price paid by
Assignee for the Designated Parcels shall be allocated among the Designated
Parcels in proportion to the relative gross sales of the Restaurants on the
Designated Parcels during the twelve (12)-month period ending on October 31,
1996 (annualized for any period less than 12 months). If Assignee purchases
all six (6) Designated Parcels, the Purchase Price shall be allocated as set
forth on EXHIBIT A.
5. DEPOSIT. Upon execution of this Agreement, the parties shall
establish with Escrow Agent a separate escrow than the Escrow under the ERPA
(the "Assignment Escrow"). Upon the opening of the Assignment Escrow,
Assignee shall deposit in the Assignment Escrow the sum of Two Hundred Fifty
Thousand Dollars ($250,000) (the "Deposit"), which amount, together with any
and all interest earned thereon, shall be held in the Assignment Escrow
pending the Closing, at which time it shall either be (i) transferred to the
Escrow Agent or the Closing Agent under the ERPA, as appropriate, to be paid
to Seller and applied against the Purchase Price payable by Assignee for the
Designated Parcels to be purchased by Assignee or (ii) retained by Assignor
pursuant to SECTION 9 in the event of Assignee's default hereunder. In
addition, the Deposit shall be refunded to Assignee in the event that this
Agreement is terminated pursuant to SECTION 1.2, if the ERPA is terminated
for reasons other than Assignee's default, or if Assignor defaults in its
obligations hereunder. Assignor and Assignee shall execute and deliver such
escrow instructions as may be necessary or appropriate to implement the
provisions of this SECTION 5.
6. EVIDENCE OF FINANCING. Within two (2) business days following the
date of this Agreement, Assignee shall deliver to Assignor written
confirmation that Assignee has notified its lender, Comerica Bank-Texas, to
effectively "lock off" the funds necessary to pay the Purchase Price for all
of the Designated Parcels plus any and all related costs payable by Assignee
under the ERPA and/or this Agreement. In the event that Assignee fails to
deliver such written confirmation to Assignor within such two (2)-day period,
Assignor shall have the right, at its election, to terminate this Agreement.
7. LIMITATIONS AND MODIFICATIONS OF ASSIGNMENT AND ASSUMPTION. The
assignment and assumption of rights and obligations under the ERPA as set
forth in SECTION 3 of this Agreement shall be subject to the following
modifications and limitations:
(a) Assignee shall have no right to determine or extend the Closing
Date under Section 1.03 of the ERPA, any such rights being exclusively
reserved to Assignor. Assignor shall provide Assignee with ten (10) days'
written notice of Closing under the
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ERPA. No modification of the ERPA, or extension of Closing after March 31,
1997, shall be binding on Assignee without its written consent.
(b) With regard to Section 1.04 of the ERPA, any and all Xxxxxxx
Money Deposit paid by Assignor shall be credited solely to Assignor's
account, and Assignee shall have no interest therein nor shall any portion
thereof be applied against the Purchase Price for the Designated Parcels
payable by Assignee.
(c) With regard to Section 1.06 of the ERPA, Assignee shall pay to
Assignor, upon request, fifty percent (50%) of the cost of any Surveys on the
Designated Parcels obtained by Assignor.
(d) With regard to Section 1.07 of the ERPA, Assignee shall pay to
Assignor, upon request, fifty percent (50%) of the cost of any Environmental
Reports on the Designated Parcels obtained by Assignor.
(e) With regard to any amounts payable by or to the buyer under
Sections 1.10, 1.11 and/or 4.04 of the ERPA that relate to the Real Property
in its entirety, if there are any Retained Parcels to be acquired by
Assignor, the amounts so payable by or to Assignee shall bear the same
proportion to the full amounts payable as the Purchase Price payable for the
Designated Parcels purchased by Assignee bears to the total Purchase Price
for the entire Real Property. Regardless of whether or not there are any
Retained Parcels to be acquired by Assignor, any amounts payable by or to the
buyer under Sections 1.10, 1.11 and/or 4.04 of the ERPA that relate to an
individual parcel of the Real Property (rather than to the Real Property in
its entirety) shall be paid by, or shall accrue to the benefit of, the party
acquiring such parcel.
(f) With regard to Section 1.13 of the ERPA, Assignee shall have no
right to terminate the ERPA (any such right being exclusively reserved to
Assignor), but Assignee shall have the right to terminate this Agreement
under option (i) of that Section and Assignee's rights to purchase the
Designated Parcels shall be reduced or terminated, as applicable, if Seller
exercises any of its rights under the last two (2) sentences of that Section.
(g) Assignee hereby represents and warrants to Assignor as set
forth in Article III of the ERPA, except that (i) references to "SDC" and
"Buyer" shall be deemed to refer to Assignee, (ii) references to "Seller"
shall be deemed to refer to Assignor, (iii) references to the "Agreement"
shall be deemed to refer to this Agreement and (iv) with regard to Section
3.01, Assignee is a Delaware limited partnership.
(h) With regard to Section 4.06, from the date hereof through the
Closing, neither Assignor nor Assignee shall disclose, disseminate, divulge,
discuss, copy or otherwise transmit the existence or terms of this Agreement
or of the ERPA, directly or indirectly, to any person or entity, except to
its respective attorneys, consultants and
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prospective lenders as reasonably required to perform its due diligence
investigations and to consummate the transaction contemplated hereunder.
(i) Assignee shall have no rights or obligations with respect to the
provisions of Section 4.09 of the ERPA, all such rights and obligations being
reserved to Assignor.
(j) Assignee shall have no right to delay the Closing Date under
Section 4.11 of the ERPA, any such right being exclusively reserved to
Assignor.
(k) The condition set forth in Section 5.08 of the ERPA shall be a
condition for the benefit of Assignee only if and to the extent that Assignee
has objected to any Defect under SECTION 2.2 of this Agreement and has not
subsequently waived such Defect.
(l) With regard to the last paragraph of Article V and Section 7.01
of the ERPA, Assignee's sole remedy in the event of a breach by Seller or in
the event of the non-occurrence of any of the conditions set forth in Article
V shall be to terminate this Agreement and receive a refund of the Deposit,
provided Assignee is not in default hereunder, any rights to terminate the
ERPA being reserved to Assignor.
(m) With regard to Article VIII of the ERPA, Assignor and Assignee
agree as follows:
(i) If Assignee or Assignor (or any other assignee of Assignor)
has a claim for indemnity against Seller under the ERPA or any Related Agreement
for a claim based on an alleged breach of representations or warranties by
Seller, the party with such claim (the "Indemnitee") shall notify the other
party to this Agreement of the existence and amount of such claim in accordance
with the provisions of Section 8.04 of the ERPA, whether or not the Indemnitee
intends or is then permitted, pursuant to the first sentence of Section 8.03 of
either the ERPA or a Related Agreement, to pursue such claim against Seller.
The amount of any and all such claims, regardless of the individual amounts
thereof, shall be referred to herein as the "Claim Pool." An Indemnitee shall
have the right at any time, subject to the restrictions of Section 9.06 and any
other applicable provisions of the ERPA or a Related Agreement, to assert and
pursue against Seller any individual claim(s) in excess of $50,000 that the
Indemnitee may have. If and when the amount of the Claim Pool exceeds $250,000,
an Indemnitee shall have the right, subject to the restrictions of Section 9.06
and any other applicable provisions of the ERPA and/or Related Agreements, to
assert and pursue against Seller any such claim(s) that the Indemnitee may have,
including, without limitation, any individual claim(s) of $50,000 or less
constituting part of the Claim Pool that the Indemnitee may previously have been
precluded from asserting by virtue of the restrictions of Section 8.03 of either
the ERPA or a Related Agreement. Assignor and Assignee shall each reasonably
cooperate (but shall have no obligation to incur any significant expense) with
the other's efforts to assert any bona fide claims against Seller.
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(ii) For purposes of determining if and when any claims by
Seller under the first sentence of Section 8.03 of the ERPA and/or Related
Agreements exceed $250,000, Assignor and Assignee shall promptly notify each
other of any and all claims asserted by Seller against either of them, and
shall provide to the other copies of any notices of claims received from
Seller under Section 8.04 of the ERPA or any Related Agreement. Assignor and
Assignee shall each keep the other reasonably informed as to the progress and
status of any such claims.
(iii) The amount of the maximum liability of the parties to the
ERPA pursuant to the second sentence of Section 8.03 thereof shall be
referred to herein as the "Indemnity Cap." If Seller's total indemnity
liability to Assignee and Assignor (and any other assignees of Assignor)
under the ERPA and the Related Agreements would, but for the Indemnity Cap,
exceed the amount of the Indemnity Cap (the amount of which total indemnity
liability shall be referred to herein as the "Uncapped Seller's Liability"),
then an adjustment and appropriate payments shall be made between Assignee
and Assignor (and any other assignees of Assignor) such that the amount
received by, or paid to a third party on behalf of, Assignee, Assignor or any
other assignee of Assignor in satisfaction of Seller's indemnity obligations
shall not exceed the percentage of the Indemnity Cap that such party's share
of the Uncapped Seller's Liability bears to the total Uncapped Seller's
Liability.
(iv) If the total indemnity liability of Assignee and Assignor
(and any other assignees of Assignor) to Seller under the ERPA and the
Related Agreements would, but for the Indemnity Cap, exceed the amount of the
Indemnity Cap (the amount of which total indemnity liability shall be
referred to herein as the "Uncapped Buyer's Liability"), then an adjustment
and appropriate payments shall be made between Assignee and Assignor (and any
other assignees of Assignor) such that the amount paid by Assignee, Assignor
or any other assignee of Assignor in satisfaction of its indemnity
obligations shall not exceed the percentage of the Indemnity Cap that such
party's share of the Uncapped Buyer's Liability bears to the total Uncapped
Buyer's Liability.
8. LEASES OF REAL PROPERTY. With respect to each of the Designated
Parcels purchased by Assignee, Assignee shall, commencing on the Closing Date,
lease such Designated Parcel to Sydran Food Services III, L.P., a California
limited partnership, which lease shall be on the terms and in substantially the
form attached hereto as EXHIBIT B. The execution of such leases by Sydran Food
Services III, L.P. shall be a condition precedent to Assignee's obligation
hereunder. The monthly "Base Rent" under each such lease shall be an amount
equal to one-twelfth (1/12) of eleven percent (11%) of the portion of the
Purchase Price allocated to the Designated Parcel covered by such lease, as
provided in SECTION 4.3 of this Agreement. For purposes of the purchase option
set forth in Section 19 of each such Lease, the purchase price shall be equal to
the portion of the Purchase Price allocated to the Designated Parcel covered by
such lease, as provided in SECTION 4.3 of this Agreement. If Assignee purchases
all six (6) Designated Parcels, the monthly "Base Rent" under each lease shall
be the "Base Rent" for such Designated Parcel as set forth on EXHIBIT A, and the
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"Break Point" under each lease shall be the "Break Point" for such Designated
Parcel as set forth on EXHIBIT A.
9. REMEDIES.
9.1 ASSIGNOR'S REMEDIES. If Assignee breaches its obligations under
this Agreement, Assignor shall be entitled to retain the Deposit as full
compensation for any and all damages suffered by Assignor as a result of
Assignee's breach.
9.2 ASSIGNEE'S REMEDIES. If Assignor breaches its obligations under
this Agreement, the Deposit shall be returned to Assignee and, in addition,
Assignee shall be entitled to either (i) collect from Assignor the sum of Two
Hundred Fifty Thousand Dollars ($250,000) as full compensation for any and all
damages suffered by Assignee as a result of Assignor's breach or (ii) bring an
action for specific performance of Assignor's obligations; provided that no
default or breach by Assignor under the ERPA or any Related Agreement shall,
solely by reason thereof, constitute a default or breach by Assignor under this
Agreement.
9.3 LIQUIDATED DAMAGES. Assignor and Assignee each agree that the
damages that they would sustain as a result of a breach of this Agreement by
the other would be extremely difficult and impracticable to ascertain.
Therefore, Assignor and Assignee each agree that if they breach their
respective obligations under this Agreement, the other party shall be
entitled to recover the sum set forth in SECTION 9.1 or 9.2, as the case may
be. Any such sum shall be paid and received as liquidated damages and not as
a penalty. Assignor and Assignee acknowledge and agree that such amounts are
reasonable estimates of the damages that they would suffer in the event of a
breach by the other considering all of the circumstances existing on the date
of this Agreement, including the relationship of the sums to the range of
harm that could reasonably be anticipated and the anticipation that proof of
actual damages would be impractical or extremely difficult. In placing their
initials at the places provided below, each party specifically confirms the
accuracy of the statements in this SECTION 9.3. Both parties agree that the
sums stated as liquidated damages shall be in lieu of any other monetary
and/or equitable relief to which a party might otherwise be entitled by
virtue of this Agreement by operation of law and/or equity.
Assignor's initials: ______ Assignee's initials: ______
10. MISCELLANEOUS.
10.1 BROKERAGE AND FINDER'S FEES; INDEMNITY. Assignor and Assignee
represent and warrant to each other that they have dealt with no broker, agent,
finder or other intermediary in connection with the transactions contemplated by
this Agreement. In the event that any claim is asserted by any
person claiming a commission or finder's fee with respect to this Agreement or
the transactions contemplated hereby arising from any act, representation, or
promise of any party hereto or its representatives, all such claims shall be
handled and paid by the party whose actions or alleged commitments form the
basis of such
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claim. The party against whom the claim for such commissions or fees is made
shall indemnify and hold the other party harmless from and against any cost
or expense with respect thereto, including, without limitation, reasonable
attorneys' fees and disbursements.
10.2 AMENDMENT AND MODIFICATION. This Agreement may be amended or
supplemented only by written agreement of Assignor and Assignee.
10.3 NON-WAIVER. No waiver or waivers by any party of any provision
of this Agreement, whether by conduct or otherwise, shall be deemed to be a
further or continuing waiver of that or any other provision of this Agreement.
10.4 EXPENSES; ATTORNEYS' FEES. Except as otherwise provided
herein, whether or not the transactions contemplated by this Agreement are
consummated, each of the parties hereto will pay its own expenses incurred by
it or on its behalf in connection with this Agreement or any transaction
contemplated by this Agreement; provided, however, if any legal action is
brought for the enforcement of this Agreement, or because of an alleged
dispute, breach default, or misrepresentation in connection with any of the
provisions of this Agreement, the successful or prevailing party or parties
shall be entitled to recover reasonable attorneys' fees and other costs
incurred in that action or proceeding, in addition to any other relief to
which it or they may be entitled. In the event that either party obtains a
judgment in connection with the enforcement or interpretation of this
Agreement, such party shall be entitled to recover from the other all costs
and expenses incurred in connection with the enforcement of such judgment,
including, without limitation, reasonable attorneys' fees, whether incurred
prior to or after the entry of the judgment.
10.5 SURVIVAL AT CLOSING. All agreements, covenants, warranties,
representations and indemnities in this Agreement shall survive the Closing
for a period of three (3) years, and it shall not be a condition precedent to
any indemnity set forth herein that the indemnified party shall have made any
payment on account of any claim, loss, damage, obligation, liability
deficiency, penalty, cost or expense indemnified against herein.
Notwithstanding the foregoing, the survival of the obligations of the parties
under SECTION 7(M) of this Agreement shall not be subject to such three
(3)-year limitation.
10.6 NOTICES. Notices hereunder shall be addressed as set forth
below or as otherwise may be designate in writing to the addresses set forth
below, and shall be sent by (i) registered or certified mail, return receipt
requested, effective three (3) days after deposit in the United States Mail,
postage prepaid; or (ii) a telecopied facsimile, effective upon receipt by
the addressee (with a copy deposited in the United States Mail, postage
prepaid); or (iii) commercial overnight courier or express service, effective
one (1) business day after deposit; of (iv) personal delivery, effective upon
receipt by the addressee:
To Assignor: Sydran Development Corporation
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
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Attention: Xxxxxxx X. Xxxxx
Fax No.: (000) 000-0000
To Assignee: U.S. Restaurant Properties Operating L.P.
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxxx
Fax No.: (000) 000-0000
With a copy to: Xxxxxxx X. Xxxxxxxx
Middleberg, Xxxxxx & Gianna
0000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Fax No.: (000) 000-0000
Either party hereto may change the address to which such communications should
be directed by giving written notice to the other party of such change.
10.7 ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
and understanding of the parties with respect to the transactions contemplated
and supersedes any and all prior agreements and understandings with respect
thereto.
10.8 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
10.9 HEADINGS. The headings and captions of the various sections of
this Agreement have been inserted only for the purpose of convenience, and are
not a part of this Agreement and shall not be deemed in any manner to modify,
explain, expand or restrict any of the provisions of this Agreement.
10.10 SUCCESSORS; ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns; provided that
Assignee shall have no right to assign any of its rights or obligations
hereunder without Assignor's prior written consent, which may be granted or
withheld in Assignor's sole discretion.
10.11 SEVERABILITY. Except as provided to the contrary herein, in
case any one or more of the provisions contained in this Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions
hereof, and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
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10.12 GOVERNING LAW. Assignor and Assignee acknowledge and agree
that this Agreement shall be governed by the laws of the State of California
applicable to agreements made and entered into in the State of California.
10.13 TIME OF ESSENCE. Time is of the essence of each provision
of this Agreement in which time for performance is an element.
10.14 RECITALS. The Recitals set forth in this Agreement are true
and correct and are a part of this Agreement.
10.15 EXHIBITS. Attached hereto are the following Exhibits, each
of which is incorporated into this Agreement in full by this reference:
Exhibit A: List of Real Property
Exhibit B: Form of Real Property Lease
10.16 ADDITIONAL ACTS. Except as otherwise provided herein, in
addition to the acts, deeds and instruments recited herein and contemplated to
be performed, executed and/or delivered by the parties hereto, each party hereby
agree to perform, execute and/or deliver, promptly following the reasonable
request of the other party, any and all such further acts, deeds, instruments
and assurances as the requesting party may reasonably require to consummate the
transactions contemplated hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
ASSIGNOR ASSIGNEE
SYDRAN DEVELOPMENT U.S. RESTAURANT PROPERTIES
CORPORATION, a California OPERATING L.P., a Delaware limited
Corporation partnership
By: /s/ XXXXXXX XXXXX
------------------------------- By: U.S. RESTAURANT PROPERTIES,
Name: Xxxxxxx Xxxxx INC., a Delaware corporation
-----------------------------
Its: Vice President and Secretary
-----------------------------
Its: Managing General Partner
By: /s/ ILLEGIBLE
--------------------------------
Its: Xxxx Xxxxxxxx, Chairman
--------------------------------
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Exhibits Omitted
