**Exhibit10.1**

 

**FIFTH AMENDMENT TO CREDIT AGREEMENT AND CREDIT DOCUMENTS**

 

Dated as of July 31,2003

 

This **FIFTH****AMENDMENT TO CREDIT AGREEMENT AND CREDIT DOCUMENTS**(this“Agreement”) by and among**U.S. RESTAURANT PROPERTIES OPERATING L.P.**, a Delaware limited partnership(“USRP Operating” or the “Principal Borrower”), **USRP FUNDING2002-A, L.P.**, a Texas limited partnership (the “General SPE);and together with USRP Operating, the “Existing Borrowers”), **USRP(S&C), LLC**, a Texas limited liability company (“S&C”),**USRPHOLDING CORP.**, a Texas corporation (“USRP Holding”; andtogether with S&C, the “New Borrowers”; collectively, the ExistingBorrowers and New Borrowers shall be referred to herein from time to time asthe “Borrower”), **USRP MANAGING, INC.**, a Delaware corporationand the general partner of USRP Operating, as a Guarantor (the “GeneralPartner”), **U.S. RESTAURANT PROPERTIES, INC.**, a Maryland corporation, as aGuarantor (“USRP REIT”), the Subsidiary Guarantors (as defined in theCredit Agreement referenced below), the Lenders (as defined in the CreditAgreement), **BANK OF AMERICA, N.A.**, as Agent for the Lenders (in suchcapacity, the “Agent”) is an amendment to the terms set forth in thatcertain Credit Agreement dated as of May 31, 2002 among the Borrower, theGeneral Partner, the Subsidiary Guarantors, the Agent, the Lenders and Banc ofAmerica Securities LLC, as Sole Lead Arranger and Sole Book Manager (insuch capacity “BAS”), as amended or modified by the terms of thatcertain letter agreement dated as of July 1, 2002 and that certain letteragreement dated as of September, 2002, as further amended by that certain FirstAmendment to Credit Agreement dated as of September, 2002, as further amendedby that certain Assignment of Account (Borrower Collateral Accounts), AgreementRelating to Letters of Credit and Second Amendment to Credit Agreement dated asof April 30, 2003, as further amended by that certain Third Amendment toCredit Agreement dated as of May 31, 2003 and as further amended by that certainFourth Amendment to Credit Agreement dated as of June 30, 2003(collectively, as the same may have be further amended, restated, supplementedor otherwise modified prior to the date hereof, the “Credit Agreement”);capitalized terms used herein and not otherwise defined shall have the meaningsgiven to such terms in the Credit Agreement.

 

**WHEREAS**,S&C is a Wholly Owned Subsidiary of USRP Holding and USRP Holding is aWholly Owned Subsidiary of USRP Operating;

 

**WHEREAS**,S&C was created for the purpose of holding certain of the Real Propertieswhich currently contribute to the Borrowing Base Asset Value and each Borrowerwishes to cause such Real Properties to continue to contribute to the BorrowingBase Asset Value and to cause the New Borrowers to become “Borrowers” under theCredit Agreement and Credit Documents;

 

**WHEREAS**,the Existing Borrowers and the New Borrowers have requested and the Lenders andAdministrative Agent have agreed to amend the Credit Agreement to add the NewBorrowers as “Borrowers” under the Credit Agreement and the other CreditDocuments and to otherwise amend the Credit Agreement and Credit Documents onthe terms and conditions set forth herein;

 

**NOW,THEREFORE**, for good and valuable consideration, the receiptof which is hereby acknowledged by the parties hereto, the parties hereto agreeas follows:

 

**1.****                                      Amendmentsto Credit Agreement.**

 

(a)                                  Theintroductory paragraph of the Loan Agreement is hereby deleted and replacedwith the following:

 

“**THIS CREDIT AGREEMENT**, dated as ofMay 31, 2002 (as amended, modified, restated or supplemented from time totime, the “Credit Agreement”), is by and among **U.S. RESTAURANT PROPERTIES OPERATING L.P.**, a Delaware limitedpartnership (“USRP Operating” or the “Principal Borrower”), **USRP FUNDING2002-A, L.P.**, a Texas limited partnership (the “General SPE),**USRP(S&C), LLC**, a Texas limited liability company (“S&C”),**USRPHOLDING CORP.**, a Texas corporation (“USRP Holding”;collectively, with USRP Operating, the General SPE and S&C, the “Borrower”),**USRPMANAGING, INC.**,

 

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a Delaware corporation and the general partner of USRPOperating, as a Guarantor (the “General Partner”), **U.S. RESTAURANT PROPERTIES, INC.**,a Maryland corporation, as a Guarantor (“USRP REIT”), the SubsidiaryGuarantors (as defined herein), the Lenders (as defined herein), **BANK OFAMERICA, N.A.**, as Agent for the Lenders (in such capacity, the “Agent”)and **BANCOF AMERICA SECURITIES LLC**, as Sole Lead Arranger and SoleBook Manager (in such capacity “BAS”).”

 

(b)                                 Thefollowing definitions are hereby added to ***Section 1.1*** of the Credit Agreement in their properalphabetical order:

 

““S&C” has the meaning given to such term in thePreamble of this Credit Agreement.”

 

““USRP Holding”has the meaning given to such term in thePreamble of this Credit Agreement.”

 

““USRP HoldingPledge Agreement” means that certainPledge and Security Agreement entered into by USRP Holding as of July 31,2003 in favor of the Collateral Agent and for the benefit of the LenderParties.”

 

(c)                                  Thedefinitions of the terms “Approved Shoneys Assets”, “Borrower”, “Borrowing BaseAsset Value” and “Credit Documents” contained in ***Section 1.1*** of the Credit Agreement arehereby deleted in their entirety and replaced, respectively, with thefollowing:

 

““ApprovedShoneys Assets” means a collective reference to those Shoneys Assets whichare wholly owned by the General SPE or S&C and have been approved by theAgent and the Required Lenders as assets which may, to the extent meeting allother requirements set forth herein, contribute to the calculation of theBorrowing Base Asset Value pursuant to a Determination Decision delivered inconnection with Section 3.24 hereof.”

 

““Borrower” means,collectively, USRP Operating, the General SPE, S&C, USRP Holding and theirrespective permitted successors and assigns.”

 

““Borrowing Base AssetValue” means, as of any given calculation date, an amount equal to (a) thesum of (i) the sum of the Asset Values of all Real Properties which are whollyowned by the General SPE or S&C; plus (ii) the sum of the AssetValues of each of the Approved Shoneys Assets; less (b) any amountsincluded in the above calculations that are attributable to (i) assets subjectto one or more Liens or Negative Pledges; and (ii) Excluded Assets.”

 

““Credit Documents”means a collective reference to this Credit Agreement, the Notes, the LOCDocuments, the USRP Pledge Agreement, the USRP Holding Pledge Agreement, eachJoinder Agreement, any UCC financingstatements securing payment under any of such documents, that certainletter agreement dated as of July 1, 2002 with respect to the CreditAgreement, that certain letter agreement dated as of September, 2002 withrespect to the Credit Agreement, that certain First Amendment to CreditAgreement dated as of September, 2002, that certain Assignment of Account(Borrower Collateral Accounts), Agreement Relating to Letters of Credit andSecond Amendment to Credit Agreement dated as of April 30, 2003, thatcertain Third Amendment to Credit Agreement dated as of May 31, 2003, thatcertain Fourth Amendment to Credit Agreement dated as of June 30, 2003,that certain Fifth Amendmetn to Credit Agreement and Credit Documents dated asof July 31, 2004 and any otherdocuments securing the obligations of the Credit Parties under this CreditAgreement or any other Credit Document (in each case as the same may beamended, modified, restated, supplemented, extended, renewed or replaced fromtime to time), and “Credit Document” means any one of them.”

 

(d)                                 Thetext of ***Section 3.24***of the Credit Agreement is hereby deleted in its entirety and replaced with thefollowing:

 

“Within thirty (30) daysfollowing a written request of the Borrower (a “Determination Request”),the Agent and Required Lenders shall deliver to the Borrower a written notice(a “Determination Decision”) determining whether any Shoneys Assets, asidentified by the Borrower in such Determination Request, are

 

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assets which may, to the extent meeting all otherrequirements set forth herein, contribute to the calculation of the BorrowingBase Asset Value.  The decision of theAgent and Required Lenders set forth in the Determination Decision shall bemade in the sole discretion of the Agent and Required Lenders.  To the extent any of the assets referencedin a Determination Request are not approved pursuant to the applicableDetermination Decision, the Agent and Lenders hereby agree to permit thetransfer or disposition of such asset by the General SPE or S&C, asapplicable, and to execute such documentation as is reasonably requested by theBorrower to permit such transfer or disposition.  The Borrower shall not make more than two (2) DeterminationRequests during the term hereof.”

 

(e)                                  Thefollowing two sentences are hereby added to the end of ***Section 6.13***:

 

“S&C has noSubsidiaries and owns no Capital Stock of any other Person.”

 

(f)                                    Thetext of ***Section 6.27***of the Credit is hereby deleted in its entirety and replaced with thefollowing:

 

“Each of S&Cand the General SPE is a Bankruptcy Remote Borrowing Entity.  USRP Operating owns 99% of the Capital Stockof the General SPE and USRP Holding owns 100% of S&C.”

 

(g)                                 Thetext of ***Section 7.2***ofthe Credit Agreement is hereby deleted in its entirety and replaced with thefollowing:

 

“Except as a resultof or in connection with a dissolution, merger or disposition of a Subsidiarynot prohibited by Section 8.4 or Section 8.5, each Credit Party will,and will cause each of its corporate Subsidiaries to, do all things necessaryto preserve and keep in full force and effect its existence, rights,franchises, authority and status as a REIT or Qualified REIT Subsidiary, asapplicable.  The General SPE and S&Cshall each maintain their respective status as a Bankruptcy Remote BorrowingEntities and each of the Credit Parties shall take such action as is requiredto maintain such status at all times during the term hereof.  The General SPE shall, at all times duringthe term hereof, remain a Wholly Owned Subsidiary of USRP Operating, S&Cshall, at all times during the term hereof, remain a Wholly Owned Subsidiary ofUSRP Holding and USRP Holding shall, at all times during the term hereof,remain a Wholly Owned Subsidiary of USRP Operating.”

 

(h)                                 Thetext of ***Section 8.5(b)***of the Credit Agreement is hereby deleted in its entirety and replaced with thefollowing:

 

“(b)                           Neitherthe General SPE nor S&C shall sell, transfer, assign, pledge, encumber orotherwise dispose of any of their respective assets except to the extent theGeneral SPE or S&C, as applicable, obtains the prior written consent of theAgent (which consent may be withheld at the sole reasonable discretion of theAgent).”

 

(i)                                     Thetext of ***Section 8.15(c)***of the Credit Agreement is hereby deleted in its entirety and replaced with thefollowing:

 

“(c)                            theGeneral SPE shall not, at any time, contract, create, incur, assume or permitto exist any Lien with respect to any of its assets except to the extent suchLiens are of the types described in Sections 8.2(a), (b), (c), (d), (e), (f),(h) and (i);”

 

(j)                                     Theword “and” at the end of clause (d) of ***Section 8.15*** is hereby deleted, the period (“.”) atthe end of clause (e) thereof is hereby deleted and replaced with a semicolon(“;”) and the following clauses (f), (g) and (h) are hereby added to ***Section 8.15*** ofthe Credit Agreement is hereby deleted in its entirety and replaced with thefollowing:

 

“(f)                              S&Cshall not, at any time, contract, create, incur, assume or permit to exist anyLien with respect to any of its assets except to the extent such Liens are ofthe types described in Sections 8.2(a), (b), (c), (d), (e), (f), (h) and (i);

 

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(g)                                 S&C shall****not, in any case, incur any Indebtednessor Contingent Obligations aside from Indebtedness and/or Contingent Obligationsarising in connection with the Credit Documents and Indebtedness and/orContingent Obligations of the type described in Section 8.1(e); and

 

(h)                                 USRPHolding shall not, at any time, contract, create, incur, assume or permit toexist any Lien on its ownership interests in S&C or on the income derivedtherefrom (except to the extent such Liens arise in connection with the CreditDocuments).”

 

**2.****                                      References to “Borrower” in Credit Documents.** All references to the “Borrower” or “Borrowers” contained in each of theCredit Documents are hereby deemed to mean a collective reference to theExisting Borrowers and the New Borrowers and any list of such parties is herebydeemed to include reference to the New Borrowers.

 

**3.****                                      Reaffirmationof Representations.**  TheBorrower, General Partner and each of the other Guarantors hereby repeat andreaffirm all representations and warranties (as modified, supplemented oramended herein) made by such party to the Agent and the Lenders in the CreditAgreement and the other Credit Documents to which it is a party on and as ofthe date hereof (or, if any representation and warranty expressly relates to anearlier date, on and as of such earlier date) with the same force and effect asif such representations and warranties were set forth in this Agreement infull.  The New Borrowers hereby join inthe making of such representations and warranties.  Each of the undersigned Credit Parties hereby acknowledges andconsents to the terms, conditions and revisions set forth in this Agreement.

 

**4.****                                      Reaffirmationof Guaranty.** The General Partner and each of the other Guarantorshereby each reaffirm their continuing guaranty obligations to the Agent and theLenders under the Credit Agreement and agree that the transactions contemplatedby this Agreement shall not in any way affect the validity and enforceabilityof their respective guaranties or the Credit Agreement or reduce, impair ordischarge their obligations thereunder.

 

**5.****                                      ConditionsPrecedent.**  The effectiveness ofthis Agreement is subject to receipt by the Agent of each of the following,each in form and substance satisfactory to the Agent:

 

(a)                                  acounterpart of this Agreement duly executed by each of the parties listed inthe preamble hereof;

 

(b)                                 afully executed version of the USRP Holding Pledge Agreement in form andsubstance similar to the document attached hereto as Exhibit A;

 

(c)                                  afully executed original of an amended and restated Revolving Note in form andsubstance similar to the document attached hereto as Exhibit A;

 

(d)                                 thefollowing corporate documents:

 

(i)                                     CharterDocuments.  Copies of the articlesor certificates of incorporation or other charter documents of each NewBorrower certified to be true and complete as of a recent date by theappropriate governmental authority of the state or other jurisdiction of itsincorporation and certified by a secretary or assistant secretary of suchPerson to be true and correct as of the date hereof;

 

(ii)                                  Bylaws.  A copy of the bylaws, operating agreement orequivalent of each New Borrower certified by a secretary or assistant secretaryof such Person to be true and correct and in force and effect as of the datehereof;

 

(iii)                               Resolutions.  Copies of resolutions of the board ofdirectors or other governing body of each New Borrower approving and adoptingthe transactions entered into and obligations assumed pursuant to the termshereof, approving and adopting the Credit Agreement and the other CreditDocuments (as amended hereby) to which it is a party and authorizing execution anddelivery of this the Loan Documents to which it is a party, such resolutions tobe certified by a secretary or

 

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assistant secretary ofsuch New Borrower to be true and correct and in force and effect as of the datehereof;

 

(e)                                  evidencethat all governmental, shareholder and third-party consents and approvals (ifany) necessary in connection with the New Borrowers becoming parties to theCredit Agreement and other Credit Documents have been obtained;

 

(f)                                    paymentby Borrower of all outstanding fees and expenses of the Agent, the IssuingLender, the Collateral Agent, each Lender and the Agent’s, Issuing Lender’s,Collateral Agent’s and Lenders’ counsel (if any) incurred in connection withthe preparation of this Agreement and all other fees and expenses relating tothe preparation, execution and delivery of this Agreement or otherwise relatedto the Credit Agreement or the Credit Documents which are due and payable onthe date hereof or as of the date of the applicable advance, including, withoutlimitation, payment to the Agent, Issuing Lender, Collateral Agent and theLenders of attorneys’ fees, consultants’ fees, travel expenses, all fees andexpenses associated with prior transactions entered into or contemplated by andbetween Borrower and the Agent, Collateral Agent, Issuing Lender and/or theLenders and all other fees and expenses due and then-owing from the Borrower tothe such Persons pursuant to the terms hereof and the Credit Documents;

 

(g)                                 evidence,satisfactory to the Agent, that S&C qualifies as a Bankruptcy RemoteBorrowing Entity and a taxable REIT subsidiary under the Code and that theexecution and performance by the Credit Parties under the Credit Documentsshall not affect such status; and

 

(h)                                 suchother documents, instruments and agreements as the Agent may reasonablyrequest.

 

**6.****                                      AdditionalRepresentations.**  The Borrower(including, without limitation, the New Borrower), General Partner and each ofthe other Guarantors collectively represent and warrant to the Agent and theLenders that:

 

(a)                                  Authorization.  The Borrower, General Partner and each otherGuarantor, respectively, has the right and power and has obtained allauthorizations necessary to execute and deliver this Agreement and to performits respective obligations hereunder and under the Credit Agreement and CreditDocuments, as amended by this Agreement, in accordance with their respectiveterms.  This Agreement has been dulyexecuted and delivered by a duly authorized officers of the Borrower, GeneralPartner and each other Guarantor, respectively, and each of this Agreement andthe Credit Agreement and Credit Documents, as amended by this Agreement, is alegal, valid and binding obligation of the Borrower, General Partner and eachother Guarantor (each as applicable), enforceable against the Borrower, GeneralPartner and each other Guarantor (each as applicable) in accordance with itsrespective terms, except as the same may be limited by bankruptcy, insolvency,and other similar laws affecting the rights of creditors generally and theavailability of equitable remedies for the enforcement of certain obligationscontained herein or therein may be limited by equitable principles generally.

 

(b)                                 Compliancewith Laws, etc.  The execution anddelivery by the Borrower, General Partner and the other Guarantors of thisAgreement and the performance by the Borrower, General Partner and/or the otherGuarantors of this Agreement and the Credit Agreement and Credit Documents, asamended by this Agreement, in accordance with their respective terms, does notand will not, by the passage of time, the giving of notice or otherwise: (i)require any Governmental Approval or violate any Applicable Law (including allEnvironmental Laws) relating to the Borrower, General Partner, any of the otherGuarantors or any other Consolidated Party; (ii) conflict with, result in abreach of or constitute a default under the organizational documents of theBorrower, General Partner, any of the other Guarantors or any otherConsolidated Party, or any indenture, agreement/or other instrument to whichthe Borrower, General Partner, any of the other Guarantors or any otherConsolidated Party is a party or by which it or any of its respectiveproperties may be bound; or (iii) result in or require the creation orimposition of any Lien upon or with respect to any property now owned orhereafter acquired by the Borrower, General Partner, any other Guarantor or anyother Consolidated Party other than in favor of the Agent for the benefit ofthe Lenders; and

 

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(c)                                  NoDefault.  No Default or Event ofDefault has occurred and is continuing as of the date hereof nor will existimmediately after giving effect to this Agreement.

 

**7.****                                      Waivers; Delays; Omissions.** No waiver by Lenders of any default shall bedeemed to be a waiver of any other subsequent default, nor shall any suchwaiver by Lenders be deemed to be a continuing waiver.  No delay or omission by Lenders inexercising any right or power hereunder, or under any other writings executedby Assignor or any obligor as security for or in connection with the CreditParty Obligations, shall impair any such right or power or be construed as awaiver thereof or any acquiescence therein, nor shall any single or partialexercise of any such right or power preclude other or further exercise thereof,or the exercise of any other right or power of Lenders hereunder or under suchother writings.

 

**8.****                                      Maximum Applicable Interest Rates. **No provision herein or in any promissory note,instrument, or any other document, instrument or agreement evidencing theCredit Party Obligations shall require the payment or permit the collection ofinterest in excess of the maximum permitted by law. If any excess of interestin such respect is provided for herein or in any such promissory note,instrument, or any other document, instrument or agreement, the provisions ofthis paragraph shall govern, and no obligor shall be obligated to pay theamount of such interest to the extent that it is in excess of the amountpermitted by law. The intention of the parties being to conform strictly to theusury laws now in force, all promissory notes, instruments, and otherdocuments, instruments or agreements evidencing the Credit Party Obligationsshall be held subject to reduction to the amount allowed under said usury lawsas now or hereafter construed by the courts having jurisdiction.

 

**9.****                                      Default.**  The failure of the Borrower or any of theGuarantors to perform any of their respective obligations under this Agreementor the material falsity of any representation or warranty made herein shall, atthe option of the Agent and/or Lenders (as determined in accordance with theCredit Agreement) after expiration of any applicable cure period, constitute anEvent of Default under the Credit Documents.

 

**10.****                               GOVERNINGLAW.**  THIS AGREEMENT SHALL BEGOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTHCAROLINA APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCHSTATE.

 

**11.****                               Successors and Assigns. **ThisAgreement shall be binding upon and shall inure to the benefit of the partieshereto and their respective successors and assigns.   No Credit Party shall transferor assign any of their respective rights or obligations hereunder without theprior written consent of the Agent.

 

**12.****                               CertainReferences.**  Each reference tothe Credit Agreement in any of the Credit Documents shall be deemed to be areference to the Credit Agreement as amended by this Agreement.

 

**13.****                               Expenses;Opinion.**  The Borrower shallreimburse the Collateral Agent, Issuing Lender, Agent and Lenders upon demandfor all reasonable costs and expenses (including reasonable attorneys’ fees)incurred by the such Persons in connection with the preparation, negotiationand execution of this Agreement and the other agreements and documents executedand delivered in connection herewith. Additionally, the Borrower shall deliver, within thirty (30) days of thedate hereof, a legal opinion from counsel to the Credit Parties concerning (a)the due authorization, execution, delivery and enforceability of this Agreementand the Credit Agreement, as amended to date and (b) such other matters as maybe reasonably requested by the Agent, in each case in form and substanceacceptable to the Agent.

 

**14.****                               Release.**  Each Credit Party hereby represents andwarrants that it has no claims, counterclaims, offsets, or defenses to any ofthe Credit Documents, or to the performance of their respective obligationsthereunder and, in consideration of the Lenders’ and Agent’s willingness togrant the amendment referenced herein, hereby releases the Issuing Lender,Agent, the Collateral Agent, the Lenders, BAS, and each of their respectiveofficers, employees, representatives, agents, counsel and directors from anyand all actions, causes of action, claims, demands, damages and liabilities ofwhatever kind or nature, in law or in equity, now known or unknown, suspectedor unsuspected to the extent that any of the foregoing arises from any actionor failure to act on or prior to the date hereof.

 

**15.****                               Effect.**  Except as expressly herein amended, theterms and conditions of the Credit Agreement and the other Credit Documentsremain in full force and effect.  Theamendments contained herein shall be deemed to have

 

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prospective applicationonly, unless otherwise specifically stated herein.

 

**16.****                               NoNovation.** The parties hereto intend this Agreement to evidence theamendments to the terms of the existing indebtedness of the Borrower andGuarantors to the Lenders as specifically set forth herein and do notintend for such amendments to constitute a novation in any manner whatsoever.

 

**17.****                               Counterparts.**  This Agreement may be executed in any numberof counterparts, each of which shall be deemed to be an original and shall bebinding upon all parties, their successors and assigns.

 

 

***[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK- SIGNATURE PAGE(S) FOLLOW(S)]***

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**IN WITNESS WHEREOF**, each of the partieshereto has caused a counterpart of this Agreement to be duly executed anddelivered as of the date hereof.

 

 
| **PRINCIPAL BORROWER**: | **U.S.   RESTAURANT  PROPERTIES  OPERATING, L.P.** |
|-------------------------|--------------------------------------------------------------|
|                    |                                                         |   |   |
|                    | By:  USRP MANAGING, INC.                                |
|                    |                                                         |   |   |   |
|                    |                                                         | By: |   | /s/  Stacy M. Riffe |   |   |
|                    |                                                         | Name:  Stacy M. Riffe |
|                    |                                                         | Title:  Chief Financial Officer |
|                    |                                                         |   |   |   |
| **GENERAL SPE:**        |                                                         |   |   |   |
|                    | **USRP FUNDING 2002-A, L.P.**                                |
|                    |                                                         |   |   |   |
|                    | By:  USRP (SFGP) 2, LLC                                 |
|                    |                                                         |
|                    |                                                         | By: |   | /s/ Stacy M. Riffe |   |   |
|                    |                                                         | Name:  Stacy M. Riffe |
|                    |                                                         | Title:  Chief Financial Officer |
|                    |                                                         |   |   |   |
| **S&C:**            |                                                         |   |   |   |
|                    | **USRP (S&C), LLC**                                      |
|                    |                                                         |   |   |   |
|                    | By:  USRP Holding Corp.                                 |
|                    |                                                         |   |   |   |
|                    |                                                         | By: |   | /s/ Stacy M. Riffe |   |   |
|                    |                                                         | Name:  Stacy M. Riffe |
|                    |                                                         | Title:  Chief Financial Officer |
|                    |                                                         |   |   |   |
| **USRP HOLDING CORP.:** |                                                         |   |   |   |
|                    | **USRP HOLDING CORP.**                                       |
|                    |                                                         |   |   |   |
|                    |                                                         | By: |   | /s/ Stacy M. Riffe |   |   |
|                    |                                                         | Name:  Stacy M. Riffe |
|                    |                                                         | Title:  Chief Financial Officer |
|                    |                                                         |   |   |   |
| **GENERAL PARTNER**:    |                                                         |   |   |   |
|                    | **USRP MANAGING, INC.**                                      |
|                    |                                                         |   |   |   |
|                    |                                                         | By: |   | /s/ Stacy M. Riffe |   |
|                    |                                                         | Name:  Stacy M. Riffe |
|                    |                                                         | Title:  Chief Financial Officer |
|                    |                                                         |   |   |   |
| **USRP  REIT**:         |                                                         |   |   |   |
|                    | **U.S.  RESTAURANT PROPERTIES, INC.**                   |
|                    |                                                         |
|                    |                                                         |   |   |   |
|                    |                                                         | By: |   | /s/ Stacy M. Riffe |   |   |
|                    |                                                         | Name:  Stacy M. Riffe |
|                    |                                                         | Title:  Chief Financial Officer |
|                         |                                                              |  |  |  |  |  |  |  |

 

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| **SUBSIDIARY GUARANTORS**: |                                                                |                                           |   |
|----------------------------|---------------------------------------------------------------------|------------------------------------------------|--------|
|                       |                                                                |                                           |   |
|                       | **ARKANSAS  RESTAURANTS #10, L.P.,**a Texas limited partnership     |
|                       |                                                                |                                           |   |
|                       |                                                                | By: North American Restaurant Management, Inc. |
|                       |                                                                |                                           |
|                       |                                                                |                                           |
|                       |                                                                | By:                                            |   | /s/ Stacy M. Riffe |   |
|                       |                                                                | Name:  Stacy M. Riffe                     |
|                       |                                                                | Title:  Chief Financial Officer           |
|                       |                                                                |                                           |   |
|                       |                                                                |                                           |   |
|                       | **RESTAURANT  PROPERTY PARTNERS, L.P.,**a Texas limited partnership |
|                       |                                                                |                                           |   |
|                       |                                                                | By: Restaurant Funding, Inc                    |
|                       |                                                                |                                           |   |
|                       |                                                                |                                           |   |
|                       |                                                                | By:                                            |   | /s/ Stacy M. Riffe |   |
|                       |                                                                | Name:  Stacy M. Riffe                     |
|                       |                                                                | Title:  Chief Financial Officer           |
|                       |                                                                |                                           |   |
|                       |                                                                |                                           |   |
|                       | **SOUTHEAST  FAST-FOOD PARTNERS, L.P.,**a Texas limited partnership |
|                       |                                                                |                                           |   |
|                       |                                                                | By: Bulldog Management, Inc.                   |
|                       |                                                                |                                           |   |
|                       |                                                                |                                           |   |
|                       |                                                                | By:                                            |   | /s/ Stacy M. Riffe |   |
|                       |                                                                | Name:  Stacy M. Riffe                     |
|                       |                                                                | Title:  Chief Financial Officer           |
|                       |                                                                |                                           |   |
|                       |                                                                |                                           |   |
|                       | **USRP  (66), LTD.,**a Texas limited partnership                    |
|                       |                                                                |                                           |   |
|                       |                                                                | By: USRP GP1, LLC                              |
|                       |                                                                |                                           |   |
|                       |                                                                |                                           |   |
|                       |                                                                | By:                                            |   | /s/ Stacy M. Riffe |   |
|                       |                                                                | Name:  Stacy M. Riffe                     |
|                       |                                                                | Title:  Chief Financial Officer           |
|                       |                                                                |                                           |   |
|                       |                                                                |                                           |   |
|                       | **USRP  (FAIN 10), L.P.,**a Texas limited partnership               |
|                       |                                                                |                                           |   |
|                       |                                                                | By: USRP GP5, LLC                              |
|                       |                                                                |                                           |   |
|                       |                                                                |                                           |   |
|                       |                                                                | By:                                            |   | /s/ Stacy M. Riffe |   |
|                       |                                                                | Name:  Stacy M. Riffe                     |
|                       |                                                                | Title:  Chief Financial Officer           |

 

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|   | **USRP  (KATY), L.P.,**a Texas limited partnership        |
|--------|-----------------------------------------------------------|
|   |                                                      |   |   |
|   |                                                      | By: USRP GP8, LLC |
|   |                                                      |   |   |
|   |                                                      |   |   |
|   |                                                      | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                      | Name: Stacy M. Riffe |
|   |                                                      | Title:  Chief Financial Officer |
|   |                                                      |   |   |
|   |                                                      |   |   |
|   | **USRP  (LAVID), L.P.,**a Texas limited partnership       |
|   |                                                      |   |   |
|   |                                                      | By: USRP GP, LLC |
|   |                                                      |   |   |
|   |                                                      |   |   |
|   |                                                      | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                      | Name:  Stacy M. Riffe |
|   |                                                      | Title:  Chief Financial Officer |
|   |                                                      |   |   |
|   |                                                      |   |   |
|   | **USRP  (PAC), L.P.,**a Texas limited partnership         |
|   |                                                      |   |   |
|   |                                                      | By: USRP (Cap), Inc. |
|   |                                                      |   |   |
|   |                                                      |   |   |
|   |                                                      | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                      | Name:  Stacy M. Riffe |
|   |                                                      | Title:  Chief Financial Officer |
|   |                                                      |   |   |
|   |                                                      |   |   |
|   | **USRP  (QUEST), L.P.,**a Texas limited partnership       |
|   |                                                      |
|   |                                                      | By: USRP GP4, LLC |
|   |                                                      |   |   |
|   |                                                      |   |   |
|   |                                                      | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                      | Name:  Stacy M. Riffe |
|   |                                                      | Title:  Chief Financial Officer |
|   |                                                      |   |   |
|   |                                                      |   |   |
|   | **USRP  (SAN ANTONIO), LTD.,**a Texas limited partnership |
|   |                                                      |
|   |                                                      | By: USRP GP, LLC |
|   |                                                      |   |
|   |                                                      |   |
|   |                                                      | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                      | Name:  Stacy M. Riffe |
|   |                                                      | Title:  Chief Financial Officer |

 

10

----

 
|   | **USRP  (T&C), L.P.,**a Texas limited partnership                 |
|--------|-----------------------------------------------------------------------|
|   |                                                                  |   |   |
|   |                                                                  | By: USRP GP3, LLC |
|   |                                                                  |   |   |
|   |                                                                  |   |   |
|   |                                                                  | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                                  | Name:  Stacy M. Riffe |
|   |                                                                  | Title:  Chief Financial Officer |
|   |                                                                  |   |   |
|   | **BULLDOG  MANAGEMENT, INC.**                                         |
|   |                                                                  |   |   |
|   |                                                                  |   |   |
|   |                                                                  | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                                  | Name:  Stacy M. Riffe |
|   |                                                                  | Title:  Chief Financial Officer |
|   |                                                                  |   |   |
|   |                                                                  |   |   |
|   | **NORTH  AMERICAN RESTAURANT MANAGEMENT, INC.,**                      |
|   |                                                                  |   |   |
|   |                                                                  |   |   |
|   |                                                                  | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                                  | Name:  Stacy M. Riffe |
|   |                                                                  | Title:  Chief Financial Officer |
|   |                                                                  |   |   |
|   |                                                                  |   |   |
|   | **RESTAURANT  FUNDING, INC.**                                         |
|   |                                                                  |   |   |
|   |                                                                  |   |   |
|   |                                                                  | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                                  | Name:  Stacy M. Riffe |
|   |                                                                  | Title:  Chief Financial Officer |
|   |                                                                  |   |   |
|   |                                                                  |   |   |
|   | **PINNACLE  RESTAURANT GROUP, LLC,**a Texas limited liability company |
|   |                                                                  |   |   |
|   |                                                                  |   |   |
|   |                                                                  | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                                  | Name:  Stacy M. Riffe |
|   |                                                                  | Title:  Chief Financial Officer |
|   |                                                                  |   |   |
|   |                                                                  |   |   |
|   | **USRP  (ACQUISITION), LLC,**a Texas limited liability company        |
|   |                                                                  |   |   |
|   |                                                                  |   |   |
|   |                                                                  | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                                  | Name:  Stacy M. Riffe |
|   |                                                                  | Title:  Chief Financial Officer |

 

11

----

 
|   | **USRP  (BC), LLC,**a Texas limited liability company      |
|--------|------------------------------------------------------------|
|   |                                                       |   |   |
|   |                                                       |   |   |
|   |                                                       | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                       | Name:  Stacy M. Riffe |
|   |                                                       | Title:  Chief Financial Officer |
|   |                                                       |   |   |
|   |                                                       |   |   |
|   | **USRP  (BILL), LLC,**a Texas limited liability company    |
|   |                                                       |   |   |
|   |                                                       |   |   |
|   |                                                       | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                       | Name:  Stacy M. Riffe |
|   |                                                       | Title:  Chief Financial Officer |
|   |                                                       |   |   |
|   |                                                       |   |   |
|   | **USRP  (BOB), LLC,**a Texas limited liability company     |
|   |                                                       |   |   |
|   |                                                       |   |   |
|   |                                                       | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                       | Name:  Stacy M. Riffe |
|   |                                                       | Title:  Chief Financial Officer |
|   |                                                       |   |   |
|   |                                                       |   |   |
|   | **USRP  (CAL), LLC,**a Texas limited liability company     |
|   |                                                       |   |   |
|   |                                                       |   |   |
|   |                                                       | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                       | Name:  Stacy M. Riffe |
|   |                                                       | Title:  Chief Financial Officer |
|   |                                                       |   |   |
|   |                                                       |   |   |
|   | **USRP  (CAP), INC.**a Texas corporation                   |
|   |                                                       |   |   |
|   |                                                       |   |   |
|   |                                                       | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                       | Name:  Stacy M. Riffe |
|   |                                                       | Title:  Chief Financial Officer |
|   |                                                       |   |   |
|   |                                                       |   |   |
|   | **USRP  (CARROLL), LLC,**a Texas limited liability company |
|   |                                                       |   |   |
|   |                                                       |   |   |
|   |                                                       | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                       | Name:  Stacy M. Riffe |
|   |                                                       | Title:  Chief Financial Officer |

 

12

----

 
|   | **USRP  (CENTRAL AVENUE), LLC,**a Texas limited liability company |
|--------|-------------------------------------------------------------------|
|   |                                                              |   |   |
|   |                                                              |   |   |
|   |                                                              | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                              | Name:  Stacy M. Riffe |
|   |                                                              | Title:  Chief Financial Officer |
|   |                                                              |   |   |
|   |                                                              |   |   |
|   | **USRP  (CHRIS), LLC,**a Texas limited liability company          |
|   |                                                              |   |   |
|   |                                                              |   |   |
|   |                                                              | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                              | Name:  Stacy M. Riffe |
|   |                                                              | Title:  Chief Financial Officer |
|   |                                                              |   |   |
|   |                                                              |   |   |
|   | **USRP  (DEEDEE), LLC,**a Texas limited liability company         |
|   |                                                              |   |   |
|   |                                                              |   |   |
|   |                                                              | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                              | Name:  Stacy M. Riffe |
|   |                                                              | Title:  Chief Financial Officer |
|   |                                                              |   |   |
|   |                                                              |   |   |
|   | **USRP  (DON), LLC,**a Texas limited liability company            |
|   |                                                              |   |   |
|   |                                                              |   |   |
|   |                                                              | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                              | Name:  Stacy M. Riffe |
|   |                                                              | Title:  Chief Financial Officer |
|   |                                                              |   |   |
|   |                                                              |   |   |
|   | **USRP  (FINANCE), LLC,**a Texas limited liability company        |
|   |                                                              |   |   |
|   |                                                              |   |   |
|   |                                                              | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                              | Name:  Stacy M. Riffe |
|   |                                                              | Title:  Chief Financial Officer |
|   |                                                              |   |   |
|   |                                                              |   |   |
|   | **USRP  (FRED), LLC,**a Texas limited liability company           |
|   |                                                              |   |   |
|   |                                                              |   |   |
|   |                                                              | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                              | Name:  Stacy M. Riffe |
|   |                                                              | Title:  Chief Financial Officer |

 

13

----

 
|   | **USRP  (GANT1), LLC,**a Texas limited liability company |
|--------|----------------------------------------------------------|
|   |                                                     |   |   |
|   |                                                     |   |   |
|   |                                                     | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                     | Name:  Stacy M. Riffe |
|   |                                                     | Title:  Chief Financial Officer |
|   |                                                     |   |   |
|   |                                                     |   |   |
|   | **USRP  (GANT2), LLC,**a Texas limited liability company |
|   |                                                     |   |   |
|   |                                                     |   |   |
|   |                                                     | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                     | Name:  Stacy M. Riffe |
|   |                                                     | Title:  Chief Financial Officer |
|   |                                                     |   |   |
|   |                                                     |   |   |
|   | **USRP  (GOLD), LLC,**a Texas limited liability company  |
|   |                                                     |   |   |
|   |                                                     |   |   |
|   |                                                     | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                     | Name:  Stacy M. Riffe |
|   |                                                     | Title:  Chief Financial Officer |
|   |                                                     |   |   |
|   |                                                     |   |   |
|   | **USRP  GP, LLC,**a Texas limited liability company      |
|   |                                                     |   |   |
|   |                                                     |   |   |
|   |                                                     | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                     | Name:  Stacy M. Riffe |
|   |                                                     | Title:  Chief Financial Officer |
|   |                                                     |   |   |
|   |                                                     |   |   |
|   | **USRP GP1,  LLC,**a Texas limited liability company     |
|   |                                                     |   |   |
|   |                                                     |   |   |
|   |                                                     | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                     | Name:  Stacy M. Riffe |
|   |                                                     | Title:  Chief Financial Officer |
|   |                                                     |   |   |
|   |                                                     |   |   |
|   | **USRP  GP3, LLC,**a Texas limited liability company     |
|   |                                                     |   |   |
|   |                                                     |   |   |
|   |                                                     | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                     | Name:  Stacy M. Riffe |
|   |                                                     | Title:  Chief Financial Officer |

 

14

----

 
|   | **USRP  GP4, LLC,**a Texas limited liability company        |
|--------|-------------------------------------------------------------|
|   |                                                        |   |   |
|   |                                                        |   |   |
|   |                                                        | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                        | Name:  Stacy M. Riffe |
|   |                                                        | Title:  Chief Financial Officer |
|   |                                                        |   |   |
|   |                                                        |   |   |
|   | **USRP  GP5, LLC,**a Texas limited liability company        |
|   |                                                        |   |   |
|   |                                                        |   |   |
|   |                                                        | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                        | Name:  Stacy M. Riffe |
|   |                                                        | Title:  Chief Financial Officer |
|   |                                                        |   |   |
|   |                                                        |   |   |
|   | **USRP  GP8, LLC,**a Texas limited liability company        |
|   |                                                        |   |   |
|   |                                                        |   |   |
|   |                                                        | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                        | Name:  Stacy M. Riffe |
|   |                                                        | Title:  Chief Financial Officer |
|   |                                                        |   |   |
|   |                                                        |   |   |
|   | **USRP  (ILLINOIS), LLC,**a Texas limited liability company |
|   |                                                        |   |   |
|   |                                                        |   |   |
|   |                                                        | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                        | Name:  Stacy M. Riffe |
|   |                                                        | Title:  Chief Financial Officer |
|   |                                                        |   |   |
|   |                                                        |   |   |
|   | **USRP  (JENNIFER), LLC,**a Texas limited liability company |
|   |                                                        |   |   |
|   |                                                        |   |   |
|   |                                                        | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                        | Name:  Stacy M. Riffe |
|   |                                                        | Title:  Chief Financial Officer |
|   |                                                        |   |   |
|   |                                                        |   |   |
|   | **USRP  (JONES), LLC,**a Texas limited liability company    |
|   |                                                        |   |   |
|   |                                                        |   |   |
|   |                                                        | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                        | Name:  Stacy M. Riffe |
|   |                                                        | Title:  Chief Financial Officer |

 

15

----

 
|   | **USRP  (JV2), LLC,**a Texas limited liability company       |
|--------|--------------------------------------------------------------|
|   |                                                         |   |   |
|   |                                                         |   |   |
|   |                                                         | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                         | Name:  Stacy M. Riffe |
|   |                                                         | Title:  Chief Financial Officer |
|   |                                                         |   |   |
|   |                                                         |   |   |
|   | **USRP  (MANAGER), LLC,**a Texas limited liability company   |
|   |                                                         |   |   |
|   |                                                         |   |   |
|   |                                                         | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                         | Name:  Stacy M. Riffe |
|   |                                                         | Title:  Chief Financial Officer |
|   |                                                         |   |   |
|   |                                                         |   |   |
|   | **USRP  (MIDON), LLC,**a Texas limited liability company     |
|   |                                                         |   |   |
|   |                                                         |   |   |
|   |                                                         | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                         | Name:  Stacy M. Riffe |
|   |                                                         | Title:  Chief Financial Officer |
|   |                                                         |   |   |
|   |                                                         |   |   |
|   | **USRP  (MINNESOTA), LLC,**a Texas limited liability company |
|   |                                                         |   |   |
|   |                                                         |   |   |
|   |                                                         | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                         | Name:  Stacy M. Riffe |
|   |                                                         | Title:  Chief Financial Officer |
|   |                                                         |   |   |
|   |                                                         |   |   |
|   | **USRP  (MISSOURI), LLC,**a Texas limited liability company  |
|   |                                                         |   |   |
|   |                                                         |   |   |
|   |                                                         | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                         | Name:  Stacy M. Riffe |
|   |                                                         | Title:  Chief Financial Officer |
|   |                                                         |   |   |
|   |                                                         |   |   |
|   | **USRP  (MOLLY), LLC,**a Texas limited liability company     |
|   |                                                         |   |   |
|   |                                                         |   |   |
|   |                                                         | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                         | Name:  Stacy M. Riffe |
|   |                                                         | Title:  Chief Financial Officer |

 

16

----

 
|   | **USRP  (PALMA), LLC,**a Texas limited liability company           |
|--------|--------------------------------------------------------------------|
|   |                                                               |   |   |
|   |                                                               |   |   |
|   |                                                               | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                               | Name:  Stacy M. Riffe |
|   |                                                               | Title:  Chief Financial Officer |
|   |                                                               |   |   |
|   |                                                               |   |   |
|   | **USRP  (PAT), LLC,**a Texas limited liability company             |
|   |                                                               |   |   |
|   |                                                               |   |   |
|   |                                                               | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                               | Name:  Stacy M. Riffe |
|   |                                                               | Title:  Chief Financial Officer |
|   |                                                               |   |   |
|   |                                                               |   |   |
|   | **USRP  (POPEYE’S), LLC,**a Texas limited liability company   |
|   |                                                               |   |   |
|   |                                                               |   |   |
|   |                                                               | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                               | Name:  Stacy M. Riffe |
|   |                                                               | Title:  Chief Financial Officer |
|   |                                                               |   |   |
|   |                                                               |   |   |
|   | **USRP  (RIBBIT), LLC,**a Texas limited liability company          |
|   |                                                               |   |   |
|   |                                                               |   |   |
|   |                                                               | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                               | Name:  Stacy M. Riffe |
|   |                                                               | Title:  Chief Financial Officer |
|   |                                                               |   |   |
|   |                                                               |   |   |
|   | **USRP  (SARAH), LLC,**a Texas limited liability company           |
|   |                                                               |   |   |
|   |                                                               |   |   |
|   |                                                               | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                               | Name:  Stacy M. Riffe |
|   |                                                               | Title:  Chief Financial Officer |
|   |                                                               |   |   |
|   |                                                               |   |   |
|   | **USRP  (ST.  LOUIS), LLC,**a Texas limited liability company |
|   |                                                               |   |   |
|   |                                                               |   |   |
|   |                                                               | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                               | Name:  Stacy M. Riffe |
|   |                                                               | Title:  Chief Financial Officer |

 

17

----

 
|   | **USRP  (STEVE), LLC,**a Texas limited liability company   |
|--------|------------------------------------------------------------|
|   |                                                       |   |   |
|   |                                                       |   |   |
|   |                                                       | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                       | Name:  Stacy M. Riffe |
|   |                                                       | Title:  Chief Financial Officer |
|   |                                                       |   |
|   |                                                       |   |   |
|   | **USRP  (SUSI), LLC,**a Texas limited liability company    |
|   |                                                       |   |   |
|   |                                                       |   |   |
|   |                                                       | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                       | Name:  Stacy M. Riffe |
|   |                                                       | Title:  Chief Financial Officer |
|   |                                                       |   |   |
|   |                                                       |   |   |
|   | **USRP  (SYBRA), LLC,**a Texas limited liability company   |
|   |                                                       |   |   |
|   |                                                       |   |   |
|   |                                                       | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                       | Name:  Stacy M. Riffe |
|   |                                                       | Title:  Chief Financial Officer |
|   |                                                       |   |   |
|   |                                                       |   |   |
|   | **USRP  (VALERIE), LLC,**a Texas limited liability company |
|   |                                                       |   |   |
|   |                                                       |   |   |
|   |                                                       | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                       | Name:  Stacy M. Riffe |
|   |                                                       | Title:  Chief Financial Officer |
|   |                                                       |   |   |
|   |                                                       |   |   |
|   | **FUEL  SUPPLY, INC.**                                     |
|   |                                                       |   |   |
|   |                                                       | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                       | Name:  Stacy M. Riffe |
|   |                                                       | Title:  Chief Financial Officer |
|   |                                                       |   |   |
|   |                                                       |   |   |
|   | **PINNACLE  RESTAURANT GROUP II, LLC**                     |
|   |                                                       |   |   |
|   |                                                       | By: |   | /s/ Stacy M. Riffe |   |
|   |                                                       | Name:  Stacy M. Riffe |
|   |                                                       | Title:  Chief Financial Officer |

 

18

----

 
|   | **USRP  (CAROLINA), LTD.**                        |
|--------|---------------------------------------------------|
|   |                                              |   |   |
|   | By:                                               | Restaurant Acquisition Corp. |
|   |                                              |   |   |
|   |                                              | By: |   | /s/ Stacy M. Riffe |   |
|   |                                              | Name:  Stacy M. Riffe |
|   |                                              | Title:  Chief Financial Officer |
|   |                                              |   |   |
|   |                                              |   |   |
|   | **USRP  (LINCOLN), LTD.**                         |
|   |                                              |   |   |
|   | By:                                               | Restaurant Acquisition Corp. |
|   |                                              |   |   |
|   |                                              | By: |   | /s/ Stacy M. Riffe |   |
|   |                                              | Name:  Stacy M. Riffe |
|   |                                              | Title:  Chief Financial Officer |
|   |                                              |   |   |
|   |                                              |   |   |
|   | **USRP  (NORMAN), LTD.**                          |
|   |                                              |   |   |
|   | By:                                               | Restaurant Acquisition Corp. |
|   |                                              |   |   |
|   |                                              | By: |   | /s/ Stacy M. Riffe |   |
|   |                                              | Name:  Stacy M. Riffe |
|   |                                              | Title:  Chief Financial Officer |
|   |                                              |   |   |
|   |                                              |   |   |
|   | **USRP  (WEST VIRGINIA) PARTNERS, L.P.**          |
|   |                                              |   |   |
|   | By:                                               | USRP Renovation Corp. |
|   |                                              |   |   |
|   |                                              | By: |   | /s/ Stacy M. Riffe |   |
|   |                                              | Name:  Stacy M. Riffe |
|   |                                              | Title:  Chief Financial Officer |
|   |                                              |   |   |
|   |                                              |   |   |
|   | **U.S.  RESTAURANT PROPERTIES DEVELOPMENT, L.P.** |
|   |                                              |   |   |
|   |                                              | By:  Restaurant  Contractor Corp. |
|   |                                              |   |   |
|   |                                              | By: |   | /s/ Stacy M. Riffe |   |
|   |                                              | Name:  Stacy M. Riffe |
|   |                                              | Title:  Chief Financial Officer |
|   |                                              |   |   |
|   |                                              |   |   |
|   | **RESTAURANT  RENOVATION PARTNERS, L.P.**         |
|   |                                              |   |   |
|   |                                              | By: Restaurant Acquisition Corp. |
|   |                                              |   |   |
|   |                                              | By: |   | /s/ Stacy M. Riffe |   |
|   |                                              | Name:  Stacy M. Riffe |
|   |                                              | Title:  Chief Financial Officer |

 

19

----

 
|   | **RESTAURANT  ACQUISITION CORP.** |
|--------|-----------------------------------|
|   |                              |   |   |
|   |                              | By: |   | /s/ Stacy M. Riffe |   |
|   |                              | Name:  Stacy M. Riffe |
|   |                              | Title:  Chief Financial Officer |
|   |                              |   |   |
|   |                              |   |   |
|   | **RESTAURANT  CONTRACTOR CORP.**  |
|   |                              |   |   |
|   |                              | By: |   | /s/ Stacy M. Riffe |   |
|   |                              | Name:  Stacy M. Riffe |
|   |                              | Title:  Chief Financial Officer |
|   |                              |   |   |
|   |                              |   |   |
|   | **USRP  RENOVATION CORP.**        |
|   |                              |   |   |
|   |                              | By: |   | /s/ Stacy M. Riffe |   |
|   |                              | Name:  Stacy M. Riffe |
|   |                              | Title:  Chief Financial Officer |

 

[remainder of page leftintentionally blank – additional signature page to follow]

 

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| **AGENT/ISSUING LENDER/LENDER/COLLATERAL AGENT****:** |                                                                                                   |
|-------------------------------------------------------|--------------------------------------------------------------------------------------------------------|
|                                                  |                                                                                                   |   |   |
|                                                  | **BANK OF AMERICA, N.A.**, in its capacity as Agent,  Issuing Lender, sole Lender and Collateral Agent |
|                                                  |                                                                                                   |   |   |
|                                                  |                                                                                                   |   |
|                                                  |                                                                                                   | By: |   |   |
|                                                  |                                                                                                   | Name: |   |   |
|                                                  |                                                                                                   | Title: |   |   |
|                                                       |                                                                                                        |  |  |  |  |  |  |  |

 

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**EXHIBIT A**

 

**FORM OF USRPHOLDING PLEDGE AGREEMENT**

 

 

**PLEDGEAGREEMENT[USRP HOLDING PLEDGE AGREEMENT]**

 

 

**THISPLEDGE AGREEMENT**, dated as of July 31, 2003 (this “PledgeAgreement”) is made by (a) **USRP HOLDINGCORP**., a Texas corporation, as pledgor (in such capacity, the “Pledgor”),and (b) **BANK OF AMERICA, N.A.**, inits capacity as Agent (in such capacity, the “Collateral Agent”) for theSecured Parties (as defined in Section 1 hereof).

 

RECITALS

 

**WHEREAS**,pursuant to the terms of that certain Credit Agreement dated as of May 31,2002 by and among **U.S.  RESTAURANT PROPERTIES OPERATING L.P.**,a Delaware limited partnership (“USRP Operating” or the “PrincipalBorrower”), **USRP FUNDING 2002-A, L.P.**,a Texas limited partnership (the “General SPE), **USRP (S&C), LLC**, a Texas limitedliability company (“S&C”), **USRPHOLDING CORP.**, a Texas corporation (“USRP Holding”;collectively, with USRP Operating, the General SPE and S&C, the “Borrower”),**USRP MANAGING, INC.**, a Delawarecorporation and the general partner of USRP Operating, as a Guarantor (the “GeneralPartner”), **U.S. RESTAURANT PROPERTIES,INC.**, a Maryland corporation, as a Guarantor (“USRP REIT”),the Subsidiary Guarantors (as defined herein), the Lenders (as defined herein),**BANK OF AMERICA, N.A.**, as Agentfor the Lenders (in such capacity, the “Agent”) and **BANC OF AMERICA SECURITIES LLC**, as SoleLead Arranger and Sole Book Manager (in such capacity “BAS”), asamended or modified by the terms of that certain letter agreement dated as ofJuly 1, 2002 and that certain letter agreement dated as of September,2002, as further amended by that certain First Amendment to Credit Agreementdated as of September, 2002, as further amended by that certain Assignment ofAccount (Borrower Collateral Accounts), Agreement Relating to Letters of Creditand Second Amendment to Credit Agreement dated as of April 30, 2003, asfurther amended by that certain Third Amendment to Credit Agreement dated as ofMay 31, 2003, as further amended by that certain Fourth Amendment toCredit Agreement dated as of June 30, 2003 and as further amended by thatcertain Fifth Amendment to Credit Agreement and Credit Documents dated as ofJuly 31, 2003 (collectively, as the same may have be further amended,restated, supplemented or otherwise modified prior to the date hereof, the “CreditAgreement”), the Secured Parties have agreed to make loans upon the termsand subject to the conditions set forth therein;

 

**WHEREAS**,it is a condition precedent to the effectiveness of that certain FifthAmendment to Credit Agreement and Credit Documents dated as of July 31,2003 and the inclusion of the Pledgor as a Borrower under the Credit Agreementthat the Pledgor shall have executed and delivered this Pledge Agreement to theCollateral Agent for the ratable benefit of the Secured Parties; and

 

**NOW,THEREFORE**, in consideration of these premises and other goodand valuable consideration, the receipt and sufficiency of which is herebyacknowledged, the parties hereto agree as follows:

 

1.                                       Definitions.Capitalized terms used herein but not otherwise defined shall have the meaningsascribed to such terms in the Credit Agreement. The following terms which aredefined in the Uniform Commercial Code as in effect in the State of NorthCarolina as of the date hereof are used herein as so defined:  Accession, Financial Asset, Proceeds andSecurity.  In addition, the followingterms have the following meanings:

 

“Secured Obligations”means, without duplication, (i) all of the obligations of the Credit Parties toany Secured Party, whenever arising, under the Credit Agreement or any of theother Credit Documents (including, but not limited to, any interest accruingafter the occurrence of a Bankruptcy Event with respect to any Credit Party,regardless of whether such interest is an allowed claim under the BankruptcyCode), whether now existing or hereafter arising, due or to become due, director indirect, absolute or contingent,

 

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howsoever evidenced, created, held or acquired,whether primary, secondary, direct, contingent, or joint and several, as suchobligations may be amended, modified, increased, extended, renewed or replacedfrom time to time, (ii) all of the obligations of the Credit Parties to anySecured Party under any Hedging Agreement, and (iii) all costs and expensesincurred in connection with enforcement and collection of the foregoingobligations, including reasonable attorneys’ fees and the allocated cost ofinternal counsel.

 

“Secured Parties”means a collective reference to the Agent, the Lenders, the Sole Lead Arrangerand the Sole Book Manager (each as defined in the Credit Agreement) and theCollateral Agent.

 

“UCC” meansthe Uniform Commercial Code, as in effect in the State of North Carolina.

 

2.                                       Pledgeand Grant of Security Interest. To secure the prompt payment andperformance in full when due, whether by lapse of time, acceleration, mandatoryprepayment or otherwise, of the Secured Obligations, Pledgor hereby grants,pledges and assigns to the Collateral Agent, for the benefit of the SecuredParties, a continuing security interest in, and a right to set off against, anyand all right, title and interest of Pledgor in and to the following, whethernow owned or existing or owned, acquired, or arising hereafter (collectively,the “Pledged Collateral”):

 

(a)                                  PledgedCapital Stock.  (i) 100% of theissued and outstanding Capital Stock owned by Pledgor in the entities set forthon Schedule 2(a) attached hereto and (ii) 65% of the issued andoutstanding classes of Capital Stock entitled to vote (within the meaning ofTreas. Reg. Section 1.956 2(c)(2)) (“Voting Equity”) and 100% ofthe issued and outstanding classes of Capital Stock not entitled to vote(within the meaning of Treas. Reg. Section 1.956 2(c)(2)) (“Non VotingEquity”) owned by the Pledgor of each foreign Subsidiary of the Pledgor setforth on Schedule 2(b), in each case together with the certificates(or other agreements or instruments), if any, representing such Capital Stockand all options and other rights, contractual or otherwise, with respectthereto (collectively, together with the Capital Stock described in Sections2(b) and 2(c) below, the “Pledged Capital Stock”), including, but notlimited to, the following:

 

(A)                              allshares, securities, partnership interests, membership interests or other equityinterests representing a dividend on any of the Pledged Capital Stock, orrepresenting a distribution or return of capital upon or in respect of thePledged Capital Stock, or resulting from a stock split, revision,reclassification or other exchange therefor, and any subscriptions, warrants,rights or options issued to the holder of, or otherwise in respect of, thePledged Capital Stock; provided, however, that such Pledgor shall not berequired to deliver more than 65% of the Voting Equity of any Person that is aforeign Subsidiary of the Pledgor; and

 

(B)                                withoutaffecting the obligations of the Pledgor under any provision prohibiting suchaction hereunder or under the Credit Agreement, in the event of anyconsolidation or merger involving the issuer of any Pledged Capital Stock andin which such issuer is not the surviving entity, the Capital Stock (in the applicablepercentage specified in Section 2(a) above) of the successor entity formedby or resulting from such consolidation or merger.

 

(b)                                 AdditionalShares.  (i) 100% of the issued andoutstanding Capital Stock of any Person which is hereafter listed on Schedule 2(a),as amended from time to time and (ii) 65% of the Voting Equity and 100% of theNon Voting Equity owned by the Pledgor of any Person which is hereafter listedon Schedule 2(b), as amended from time to time, in each casetogether with the certificates (or other agreements or instruments), if any,representing such Capital Stock.

 

(c)                                  Proceeds.All Accessions and all Proceeds of any and all of the foregoing, including,without limitation, all cash and non-cash proceeds and products of the foregoing,however and whenever acquired and in whatever form.

 

Without limiting thegenerality of the foregoing, it is hereby specifically understood and agreedthat Pledgor may from time to time hereafter deliver additional shares ofCapital Stock to the Collateral Agent as collateral security for the SecuredObligations.  Upon delivery to theCollateral Agent, such additional Capital Stock

 

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shall be deemed to be part of the Pledged Collateral and shall be subjectto the terms of this Pledge Agreement whether or not Schedule 2(a)is amended to refer to such additional Capital Stock.

 

3.                                       Securityfor Secured Obligations. The security interest created hereby in thePledged Collateral constitutes continuing collateral security for the SecuredObligations.

 

4.                                       Deliveryof the Pledged Collateral; Perfection of Security Interest.

 

(a)                                  Deliveryof Certificates.  Pledgor shalldeliver to the Collateral Agent (i) simultaneously with or prior to theexecution and delivery of this Pledge Agreement, all certificates representingthe Pledged Capital Stock of Pledgor and (ii) promptly upon the receipt thereofby or on behalf of Pledgor, all other certificates and instruments constitutingPledged Collateral of Pledgor.  Prior todelivery to the Collateral Agent, all such certificates and instrumentsconstituting Pledged Collateral of Pledgor shall be held in trust by Pledgorfor the benefit of the Collateral Agent pursuant hereto.  All such certificates shall be delivered in suitableform for transfer by delivery or shall be accompanied by duly executedinstruments of transfer or assignment in blank, substantially in the formprovided in Exhibit 4(a) attached hereto with appropriate reference madetherein to capital stock, partnership interests or membership interests, asappropriate.

 

(b)                                 AdditionalSecurities.  If Pledgor shallreceive by virtue of its being, becoming or having been the owner of anyPledged Collateral, any (i) certificate, including without limitation, any certificaterepresenting a dividend or distribution in connection with any increase orreduction of capital, reclassification, merger, consolidation, sale of assets,combination of shares or membership or equity interests, stock splits, spin-offor split-off, promissory notes or other instrument; (ii) option or right,whether as an addition to, substitution for, or an exchange for, any PledgedCollateral or otherwise; (iii) dividends payable in securities; or(iv) distributions of securities or other equity interests in connectionwith a partial or total liquidation, dissolution or reduction of capital,capital surplus or paid-in surplus, then, subject to the percentage limitationsset forth in Section 2(a) above, Pledgor shall receive such certificate,instrument, option, right or distribution in trust for the benefit of theSecured Parties, shall segregate it from Pledgor’s other property and shalldeliver it forthwith to the Collateral Agent in the exact form receivedtogether with any necessary endorsement and/or appropriate stock power dulyexecuted in blank, substantially in the form provided in Exhibit 4(a),to be held by the Collateral Agent as Pledged Collateral and as furthercollateral security for the Secured Obligations.

 

(c)                                  FinancingStatements.  Pledgor shall executeand deliver to the Collateral Agent such UCC or other applicable financingstatements as may be reasonably requested by the Collateral Agent in order toperfect and protect the security interest created hereby in the Pledged Collateralof Pledgor.

 

(d)                                 Control.  If necessary to perfect the Secured Parties’security interest in any Pledged Collateral consisting of uncertificatedPledged Capital Stock, upon request of the Collateral Agent, (i) the Pledgorshall, and shall cause each issuer of such uncertificated Pledged Capital Stock(each an “Issuer”) to, execute a control agreement in form and substancereasonably acceptable to the Collateral Agent. Pledgor hereby authorizes and instructs each Issuer that is a party tothis Pledge Agreement to comply with any instruction received by it from theCollateral Agent in writing that (y) states that an Event of Default hasoccurred and is continuing and (z) is otherwise in accordance with the terms ofthis Pledge Agreement, without any other or further instructions from Pledgor,and Pledgor agrees to indemnify such Issuer for any loss, damage or liabilityincurred by such Issuer in acting upon such instructions of the CollateralAgent.

 

5.                                       Representationsand Warranties.  Pledgor herebyrepresents and warrants to the Collateral Agent, for the benefit of the SecuredParties, that:

 

(a)                                  Authorizationof Pledged Capital Stock.  ThePledged Capital Stock is duly authorized and validly issued, is fully paid and,with respect any Pledged Capital Stock consisting of stock of a corporation,nonassessable and is not subject to the preemptive rights of any Person.  All other shares of Capital Stockconstituting Pledged Collateral will be duly authorized and validly issued,fully paid and,

 

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with respect any Pledged Capital Stock consisting ofstock of a corporation, nonassessable and not subject to the preemptive rightsof any Person.

 

(b)                                 Title.  Pledgor has good and indefeasible title tothe Pledged Collateral of Pledgor and will at all times be the legal andbeneficial owner of such Pledged Collateral free and clear of any Lien, otherthan Permitted Liens.  There exists no“adverse claim” within the meaning of Section 8-102 of the UCC withrespect to the Pledged Capital Stock of Pledgor.

 

(c)                                  Exercisingof Rights.  The exercise by theCollateral Agent of its rights and remedies hereunder will not violate any lawor governmental regulation or any material contractual restriction binding onor affecting Pledgor or any of its property.

 

(d)                                 Pledgor’sAuthority.  No authorization,approval or action by, and no notice or filing with any Governmental Authorityor with the issuer of any Pledged Capital Stock is required either (i) for thepledge made by Pledgor or for the granting of the security interest by Pledgorpursuant to this Pledge Agreement or (ii) for the exercise by the CollateralAgent or the Secured Parties of their rights and remedies hereunder (except asmay be required by laws affecting the offering and sale of securities).

 

(e)                                  SecurityInterest/Priority.  This PledgeAgreement creates a valid security interest in favor of the Collateral Agent,for the benefit of the Secured Parties, in the Pledged Collateral.  The taking possession by the CollateralAgent of the certificates, if any, representing the Pledged Capital Stock andall other certificates and instruments constituting Pledged Collateral willperfect and establish the first priority of the Collateral Agent’ securityinterest in the Pledged Capital Stock and such certificates and instrumentsand, upon the filing of UCC financing statements or registration of theCollateral Agent’ security interest on the books and records of the Issuers ofany uncertificated Pledged Capital Stock, the Collateral Agent shall have afirst priority perfected security interest in all other Pledged Collateralrepresented by such Pledged Capital Stock. Except as set forth in this Section 5(e), no action is necessary toperfect or otherwise protect such security interest.

 

(f)                                    Partnershipand Membership Interests.  Except aspreviously disclosed to the Collateral Agent, none of the Pledged Sharesconsisting of partnership or limited liability company interests (i) is dealtin or traded on a securities exchange or in a securities market, (ii) by itsterms expressly provides that it is a security governed by Article 8 ofthe UCC, (iii) is an investment company security, (iv) is held in a securitiesaccount or (v) constitutes a Security or a Financial Asset.

 

(g)                                 NoOther Capital Stock.  Pledgor ownsno Capital Stock in the SPE Sub other than as set forth on Schedule 2(a)and Schedule 2(b) attached hereto.

 

(h)                                 Partnershipand Limited Liability Company Interests. Except as previously disclosed to the Collateral Agent, none of thePledged Capital Stock consisting of partnership or limited liability companyinterests (i) is dealt in or traded on a securities exchange or in a securitiesmarket, (ii) by its terms expressly provides that it is a security governed byArticle 8 of the UCC, (iii) is an investment company security, (iv) isheld in a securities account or (v) constitutes a “security” or a “financialasset” as such terms are defined in Article 8 of the UCC.

 

6.                                       Covenants.  Pledgor hereby covenants, that until such timeas the Credit Party Obligations are fully satisfied, Pledgor shall:

 

(a)                                  Booksand Records.  Mark its books andrecords (and shall cause the issuer of the Pledged Capital Stock of Pledgor tomark its books and records) to reflect the security interest granted to theCollateral Agent, for the benefit of the Secured Parties, pursuant to thisPledge Agreement.

 

(b)                                 Defenseof Title.  Warrant and defend titleto and ownership of the Pledged Collateral of Pledgor at its own expenseagainst the claims and demands of all other parties claiming an interesttherein, keep the Pledged Collateral free from all Liens, except for PermittedLiens, and not sell, exchange, transfer,

 

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assign, lease or otherwise dispose of PledgedCollateral of Pledgor or any interest therein, except as permitted under theCredit Agreement and the other Credit Documents.

 

(c)                                  FurtherAssurances.  Promptly execute anddeliver at its expense all further instruments and documents and take allfurther action that may be necessary and desirable or that the Collateral Agentmay reasonably request in order to (i) perfect and protect the securityinterest created hereby in the Pledged Collateral of Pledgor (including,without limitation, the execution and filing of UCC financing statements andany and all action necessary to satisfy the Collateral Agent that theCollateral Agent has obtained a first priority perfected security interest inall Pledged Capital Stock); (ii) enable the Collateral Agent to exercise andenforce its rights and remedies hereunder in respect of the Pledged Collateralof Pledgor; and (iii) otherwise effect the purposes of this Pledge Agreement,including, without limitation and if requested by the Collateral Agent upon theoccurrence or during the continuance of an Event of Default, delivering to theCollateral Agent irrevocable proxies in respect of the Pledged Collateral ofPledgor.  To that end, Pledgor agreesthat the Collateral Agent may file one or more financing statements disclosingthe Collateral Agent’s security interest in any or all of the PledgedCollateral of Pledgor without Pledgor’s signature thereon, and further Pledgoralso hereby irrevocably makes, constitutes and appoints the Collateral Agent,its nominee or any other person whom the Collateral Agent may designate, asPledgor’s attorney-in-fact with full power and for the limited purpose to signin the name of Pledgor any such financing statements (including renewalstatements), amendments and supplements, notices or any similar documents thatin the Collateral Agent’s reasonable discretion would be necessary, appropriateor convenient in order to perfect and maintain perfection of the securityinterests granted hereunder, such power, being coupled with an interest, beingand remaining irrevocable so long as the Secured Obligations remain unpaid anduntil the commitments relating thereto shall have been terminated.  Pledgor hereby agrees that a carbon,photographic or other reproduction of this Pledge Agreement or any suchfinancing statement is sufficient for filing as a financing statement by theCollateral Agent without notice thereof to Pledgor wherever the CollateralAgent may in its sole discretion desire to file the same.  In the event for any reason the law of anyjurisdiction other than Delaware becomes or is applicable to the PledgedCollateral of Pledgor or any part thereof, or to any of the SecuredObligations, Pledgor agrees to execute and deliver all such instruments and todo all such other things as the Collateral Agent reasonably deems necessary topreserve, protect and enforce the security interests of the Collateral Agentunder the law of such other jurisdiction (and, if Pledgor shall fail to do sopromptly upon the request of the Collateral Agent, then the Collateral Agentmay execute any and all such requested documents on behalf of Pledgor pursuantto the power of attorney granted hereinabove). If any Pledged Collateral is in the possession or control of Pledgor’sagents and the Collateral Agent so requests, Pledgor agrees to notify suchagents in writing of the Collateral Agent’s security interest therein and, uponthe Collateral Agent’s request, instruct them to hold all such PledgedCollateral for its account and subject to the Collateral Agent’sinstructions.  Pledgor agrees to markits books and records to reflect the security interest of the Collateral Agentin the Pledged Collateral.

 

(d)                                 Amendments.  Not make or consent to any amendment orother modification or waiver with respect to any of the Pledged Collateral ofPledgor or enter into any agreement or allow to exist any restriction withrespect to any of the Pledged Collateral of Pledgor other than pursuant heretoor as may be permitted under the Credit Agreement.

 

(e)                                  Compliancewith Securities Laws.  File allreports and other information now or hereafter required to be filed by Pledgorwith the United States Securities and Exchange Commission and any other state,federal or foreign agency in connection with the ownership of the PledgedCollateral of Pledgor.

 

(f)                                    Issuance,Acquisition or Encumbrance of Capital Stock.  Not issue or acquire any Capital Stock or execute any warrants,pledges or similar instruments pledging or in any manner encumbering itscurrently outstanding Capital Stock except to the extent required by the CreditDocuments.

 

7.                                       Performanceof Obligations and Advances by Collateral Agent or Secured Parties. Onfailure of Pledgor to perform any of the covenants and agreements containedherein, the Collateral Agent or any of the Secured Parties may, at its soleoption and in its reasonable discretion, perform or cause to be performed thesame and in so doing may expend such sums as the Collateral Agent or suchSecured Party may reasonably deem advisable in the performance thereof,including, without limitation, the payment of any insurance premiums, thepayment of any taxes, a payment to

 

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obtain a release of a Lien or potential Lien, expenditures made indefending against any adverse claim and all other expenditures which theCollateral Agent or such Secured Party may make for the protection of thesecurity hereof or which may be compelled to make by operation of law.  All such sums and amounts so expended shallbe repayable by the Pledgor on a joint and several basis promptly upon timelynotice thereof and demand therefor, shall constitute additional SecuredObligations and shall bear interest from the date said amounts are expended atthe default rate specified in Section 3.1 of the Credit Agreementfor Revolving Loans.  No suchperformance of any covenant or agreement by the Collateral Agent or the SecuredParties on behalf of Pledgor, and no such advance or expenditure therefor,shall relieve the Pledgor of any default under the terms of this PledgeAgreement, the Credit Agreement, any of the other Credit Documents or any otherdocuments relating to the Secured Obligations. The Collateral Agent or any Secured Party may make any payment herebyauthorized in accordance with any bill, statement or estimate procured from theappropriate public office or holder of the claim to be discharged withoutinquiry into the accuracy of such bill, statement or estimate or into thevalidity of any tax assessment, sale, forfeiture, tax lien, title or claimexcept to the extent such payment is being contested in good faith by Pledgorin appropriate proceedings and against which adequate reserves are beingmaintained in accordance with GAAP.

 

8.                                       Eventsof Default. The occurrence of an event which under the Credit Agreementwould constitute an Event of Default shall be an event of default hereunder (an“Event of Default”).

 

9.                                       Remedies.

 

(a)                                  GeneralRemedies. Upon the occurrence of an Event of Default and during thecontinuation thereof, the Collateral Agent and the Secured Parties shall have,in addition to the rights and remedies provided herein, in the CreditAgreement, the other Credit Documents or in any other documents relating to theSecured Obligations, or by law (including, without limitation, levy ofattachment or garnishment), the rights and remedies of a secured party underthe UCC of the jurisdiction applicable to the affected Pledged Collateral.

 

(b)                                 Saleof Pledged Collateral.  Upon theoccurrence of an Event of Default and during the continuation thereof, withoutlimiting the generality of this Section and without notice, the CollateralAgent may, in their sole discretion, sell or otherwise dispose of or realizeupon the Pledged Collateral, or any part thereof, in one or more parcels, atpublic or private sale, at any exchange or broker’s board or elsewhere, at suchprice or prices and on such other terms as the Collateral Agent may deemcommercially reasonable, for cash, credit or for future delivery or otherwisein accordance with applicable law.  Tothe extent permitted by law, any Secured Party may in such event bid for thepurchase of such securities.  Pledgoragrees that, to the extent notice of sale shall be required by law and has notbeen waived by Pledgor, any requirement of reasonable notice shall be met ifnotice, specifying the place of any public sale or the time after which anyprivate sale is to be made, is personally served on or mailed postage prepaidto Pledgor in accordance with the notice provisions of Section 11.1of the Credit Agreement at least 10 days before the time of such sale.  The Collateral Agent shall not be obligatedto make any sale of Pledged Collateral of Pledgor regardless of notice of salehaving been given.  The Collateral Agentmay adjourn any public or private sale from time to time by announcement at thetime and place fixed therefor, and such sale may, without further notice, bemade at the time and place to which it was so adjourned.

 

(c)                                  PrivateSale.  Upon the occurrence of anEvent of Default and during the continuation thereof, the Pledgor recognizesthat the Collateral Agent may deem it impracticable to effect a public sale ofall or any part of the Pledged Collateral and that the Collateral Agent may,therefore, determine to make one or more private sales of any such PledgedCollateral to a restricted group of purchasers who will be obligated to agree,among other things, to acquire such Pledged Collateral for their own account,for investment and not with a view to the distribution or resale thereof.  Pledgor acknowledges that any such privatesale may be at prices and on terms less favorable to the seller than the pricesand other terms which might have been obtained at a public sale and, notwithstandingthe foregoing, agrees that such private sale shall be deemed to have been madein a commercially reasonable manner and that the Collateral Agent shall have noobligation to delay sale of any such Pledged Collateral for the period of timenecessary to permit the issuer of such Pledged Collateral to register suchPledged Collateral for public sale under the Securities Act of 1933.  Pledgor further acknowledges and agrees thatany offer to sell such Pledged Collateral which has been (i) publicly advertisedon a bona fide basis in a newspaper or other publication of

 

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general circulation in the financial community ofCharlotte, North Carolina (to the extent that such offer may be advertisedwithout prior registration under the Securities Act of 1933), or (ii) madeprivately in the manner described above shall be deemed to involve a “publicsale” under the UCC, notwithstanding that such sale may not constitute a“public offering” under the Securities Act of 1933, and the Collateral Agentmay, in such event, bid for the purchase of such Pledged Collateral.

 

(d)                                 Retentionof Pledged Collateral. To the extent permitted under applicable law, inaddition to the rights and remedies hereunder, upon the occurrence of an Eventof Default, the Collateral Agent may, after providing the notices required bySections 9-620 and 9-621 of the UCC or otherwise complying with therequirements of applicable law of the relevant jurisdiction, accept or retainall or any portion of the Pledged Collateral in satisfaction of the SecuredObligations.  Unless and until theCollateral Agent shall have provided such notices, however, the CollateralAgent shall not be deemed to have accepted or retained any Pledged Collateralin satisfaction of any Secured Obligations for any reason.

 

(e)                                  Deficiency.  In the event that the proceeds of any sale,collection or realization are insufficient to pay all amounts to which theCollateral Agent or the Secured Parties are legally entitled, the Pledgor shallbe jointly and severally liable for the deficiency, together with interestthereon at the default rate specified in Section 3.1 of the CreditAgreement for Revolving Loans that are Base Rate Loans and together with thecosts of collection and the reasonable fees of any attorneys employed by theCollateral Agent to collect such deficiency. Any surplus remaining after the full payment and satisfaction of theSecured Obligations shall be returned to the Pledgor or to whomsoever a courtof competent jurisdiction shall determine to be entitled thereto.

 

(f)                                    PartialExercise of Remedies/Failure to Exercise Remedies.  Pledgor hereby acknowledges and agrees that(i) the Collateral Agent shall not, in any case, be obligated to exercise anyremedies contemplated hereunder, (ii) the Collateral Agent may, in their solediscretion, exercise any remedy contemplated hereunder with respect to all orany portion of the Pledged Collateral, and (iii) any failure by the CollateralAgent upon an Event of Default hereunder to exercise its remedies with respectto any portion or the whole of the Pledged Collateral shall not constitute awaiver of its right to exercise such remedies at any point in the future duringsuch Event of Default or any later Event of Default.

 

10.                                 Rightsof the Collateral Agent.

 

(a)                                  Powerof Attorney.  In addition to otherpowers of attorney contained herein, Pledgor hereby designates and appoints theCollateral Agent, on behalf of the Secured Parties, and each of their designeesor agents as attorney-in-fact of Pledgor, irrevocably and with power ofsubstitution, with authority to take any or all of the following actions uponthe occurrence and during the continuance of an Event of Default:

 

(i)                                     todemand, collect, settle, compromise, adjust and give discharges and releasesconcerning the Pledged Collateral of Pledgor, all as the Collateral Agent mayreasonably determine;

 

(ii)                                  tocommence and prosecute any actions at any court for the purposes of collectingany of the Pledged Collateral of Pledgor and enforcing any other right inrespect thereof;

 

(iii)                               todefend, settle, adjust or compromise any action, suit or proceeding broughtand, in connection therewith, give such discharge or release as the CollateralAgent may deem reasonably appropriate;

 

(iv)                              topay or discharge taxes, liens, security interests, or other encumbrances leviedor placed on or threatened against the Pledged Collateral of Pledgor;

 

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(v)                                 todirect any parties liable for any payment under any of the Pledged Collateral tomake payment of any and all monies due and to become due thereunder directly tothe Collateral Agent or as the Collateral Agent shall direct;

 

(vi)                              toreceive payment of and receipt for any and all monies, claims, and otheramounts due and to become due at any time in respect of or arising out of anyPledged Collateral of Pledgor;

 

(vii)                           to signand endorse any drafts, assignments, proxies, stock powers, verifications,notices and other documents relating to the Pledged Collateral of Pledgor;

 

(viii)                        to executeand deliver all assignments, conveyances, statements, financing statements,renewal financing statements, pledge agreements, affidavits, notices and otheragreements, instruments and documents that the Collateral Agent may determinenecessary in order to perfect and maintain the security interests and liensgranted in this Pledge Agreement and in order to fully consummate all of thetransactions contemplated herein;

 

(ix)                                toexchange any of the Pledged Collateral of Pledgor or other property upon anymerger, consolidation, reorganization, recapitalization or other readjustmentof the issuer thereof and, in connection therewith, deposit any of the PledgedCollateral of Pledgor with any committee, depository, transfer agent, registraror other designated agency upon such terms as the Collateral Agent maydetermine;

 

(x)                                   tovote for a shareholder or member resolution, or to sign an instrument inwriting, sanctioning the transfer of any or all of the Pledged Capital Stock ofPledgor into the name of the Collateral Agent or one or more of the SecuredParties or into the name of any transferee to whom the Pledged Capital Stock ofPledgor or any part thereof may be sold pursuant to Section 9 hereof; and

 

(xi)                                todo and perform all such other acts and things as the Collateral Agent mayreasonably deem to be necessary, proper or convenient in connection with thePledged Collateral of Pledgor.

 

This power of attorney isa power coupled with an interest and shall be irrevocable for so long as any ofthe Credit Party Obligations are not fully satisfied.  The Collateral Agent shall be under no duty to exercise orwithhold the exercise of any of the rights, powers, privileges and optionsexpressly or implicitly granted to the Collateral Agent in this PledgeAgreement and shall not be liable for any failure to do so or any delay indoing so.  The Collateral Agent shallnot be liable for any act or omission or for any error of judgment or anymistake of fact or law in their individual capacities or their capacity as attorney-in-factexcept acts or omissions resulting from its gross negligence or willfulmisconduct.  This power of attorney isconferred on the Collateral Agent solely to protect, preserve and realize uponits security interest in the Pledged Collateral.

 

(b)                                 Assignmentby the Collateral Agent.  TheCollateral Agent may from time to time assign the Secured Obligations and anyportion thereof and/or the Pledged Collateral and any portion thereof to asuccessor Collateral Agent under the Credit Agreement and the assignee shall beentitled to all of the rights and remedies of the Collateral Agent under thisPledge Agreement in relation thereto.

 

(c)                                  TheCollateral Agent’s Duty of Care. Other than the exercise of reasonable care to ensure the safe custody ofthe Pledged Collateral while being held by the Collateral Agent hereunder, theCollateral Agent shall have no duty or liability to preserve rights pertainingthereto, it being understood and agreed that the Pledgor shall be responsiblefor preservation of all rights in the Pledged Collateral of Pledgor, and theCollateral Agent shall be relieved of all responsibility for such PledgedCollateral upon surrendering it or tendering the surrender of it toPledgor.  The Collateral Agent shall bedeemed to have exercised reasonable care in the custody and preservation of thePledged Collateral in its possession if such Pledged Collateral is accordedtreatment substantially equal to that which the Collateral Agent accord their

 

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own property, which shall be no less than thetreatment employed by a reasonable and prudent agent in the industry, it beingunderstood that the Collateral Agent shall not have responsibility for (i)ascertaining or taking action with respect to calls, conversions, exchanges,maturities, tenders or other matters relating to any Pledged Collateral,whether or not the Collateral Agent have or are deemed to have knowledge ofsuch matters; or (ii) taking any necessary steps to preserve rights against anyparties with respect to any Pledged Collateral.

 

(d)                                 VotingRights in Respect of the Pledged Collateral.

 

(i)                                     Solong as no Event of Default shall have occurred and be continuing, to theextent permitted by law, Pledgor may exercise any and all voting and otherconsensual rights pertaining to the Pledged Collateral of Pledgor or any partthereof for any purpose not inconsistent with the terms of this PledgeAgreement or the Credit Agreement (including, without limitation,Section 6(g) hereof); and

 

(ii)                                  Uponthe occurrence and during the continuance of an Event of Default, all rights ofPledgor to exercise the voting and other consensual rights which it wouldotherwise be entitled to exercise pursuant to paragraph (i) of thisSection shall cease and all such rights shall thereupon become vested inthe Collateral Agent which shall then have the sole right to exercise suchvoting and other consensual rights.

 

(f)                                    Dividendand Distribution Rights in Respect of the Pledged Collateral.

 

(i)                                     Solong as no Event of Default shall have occurred and be continuing and subjectto Section 4(b) hereof, Pledgor may receive and retain any and alldividends (other than stock dividends and other dividends constituting PledgedCollateral which are addressed hereinabove), distributions or interest paid inrespect of the Pledged Collateral to the extent they are allowed under theCredit Agreement.

 

(ii)                                  Uponthe occurrence and during the continuance of an Event of Default:

 

(A)                              allrights of Pledgor to receive the dividends, distributions and interest paymentswhich it would otherwise be authorized to receive and retain pursuant tosubsection (i) of this Section shall cease and all such rights shallthereupon be vested in the Collateral Agent which shall then have the soleright to receive and hold as Pledged Collateral such dividends, distributionsand interest payments; and

 

(B)                                alldividends, distributions and interest payments which are received by Pledgorcontrary to the provisions of subsection (A) of this Section shall bereceived in trust for the benefit of the Secured Parties, shall be segregatedfrom other property or funds of Pledgor, and shall be forthwith paid over tothe Collateral Agent as Pledged Collateral in the exact form received, to beheld by the Collateral Agent as Pledged Collateral and as further collateralsecurity for the Secured Obligations.

 

(g)                                 Releaseof Pledged Collateral.  TheCollateral Agent may release any of the Pledged Collateral from this PledgeAgreement or may substitute any of the Pledged Collateral for other PledgedCollateral without altering, varying or diminishing in any way the force,effect, lien, pledge or security interest of this Pledge Agreement as to anyPledged Collateral not expressly released or substituted, and this Pledge Agreementshall continue as a first priority lien on all Pledged Collateral not expresslyreleased or substituted.

 

11.                                 Rightsof Required Lenders and Actions of Collateral Agent.

 

(a)                                  Rightsof Required Lenders to Act for Collateral Agent.  All rights of the Collateral Agent hereunder, if not exercised bythe Collateral Agent, in its capacity as a Lender Entity, may be exercised bythe Required Lenders.

 

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(b)                                 Actionsof Collateral Agent.  All actions ofthe Collateral Agent hereunder (including the exercise of the remedies setforth in Section 9 hereof) shall be taken with the unanimousconsent of each of the Collateral Agent, except to the extent the SecuredObligations with respect to the credit facility administered by such LenderEntity are fully satisfied, in which case such Lender Entity’s consent shallnot be required.

 

12.                                 Applicationof Proceeds.  Upon the occurrenceand during the continuance of an Event of Default, any payments in respect ofthe Secured Obligations and any proceeds of any Pledged Collateral, whenreceived by the Collateral Agent or any of the Secured Parties in cash or itsequivalent, will be applied pro rata to the Secured Obligations in respect ofthe Credit Agreement and the Credit Documents. Following such pro rata allocation, such proceeds shall be applied inreduction of the Secured Obligations in the order set forth in Section 3.15(b)of the Credit Agreement.  Pledgorirrevocably waives the right to direct the application of such payments andproceeds and acknowledges and agrees that the Collateral Agent shall have thecontinuing and exclusive right to apply and reapply any and all such paymentsand proceeds in the Collateral Agent’ sole discretion, notwithstanding anyentry to the contrary upon any of its books and records.

 

13.                                 Costsand Expenses. At all times hereafter, whether or not upon the occurrence ofan Event of Default, the Pledgors agree to promptly pay upon demand any and allreasonable costs and expenses (including, without limitation, reasonablyattorneys’ fees) of the Collateral Agent and the Secured Parties (a) asrequired under the Credit Agreement and (b) as necessary to protect the PledgedCollateral or to exercise any rights or remedies under this Pledge Agreement orwith respect to any Pledged Collateral. All of the foregoing costs and expenses shall constitute SecuredObligations hereunder.

 

14.                                 ContinuingAgreement.

 

(a)                                  ThisPledge Agreement shall be a continuing agreement in every respect and shallremain in full force and effect until such time as the Credit Party Obligationsunder the Credit Agreement are Fully Satisfied.  At such time as such obligations are fully satisfied, this PledgeAgreement shall be automatically terminated and the Collateral Agent and theSecured Parties shall, upon the request and at the expense of the Pledgor, (i)return all certificates representing the Pledged Capital Stock, all othercertificates and instruments constituting Pledged Collateral and allinstruments of transfer or assignment which have been delivered to theCollateral Agent pursuant to this Pledge Agreement and (ii) forthwith releaseall of its liens and security interests hereunder and shall execute and deliverall UCC termination statements and/or other documents reasonably requested bythe Pledgor evidencing such termination. Notwithstanding the foregoing, all releases and indemnities providedhereunder shall survive termination of this Pledge Agreement.

 

(b)                                 ThisPledge Agreement shall continue to be effective or be automatically reinstated,as the case may be, if at any time payment, in whole or in part, of any of theSecured Obligations is rescinded or must otherwise be restored or returned bythe Collateral Agent or any Secured Party as a preference, fraudulentconveyance or otherwise under any bankruptcy, insolvency or similar law, all asthough such payment had not been made; provided that in the event payment ofall or any part of the Secured Obligations is rescinded or must be restored orreturned, all reasonable costs and expenses (including without limitation anyreasonable legal fees and disbursements) incurred by the Collateral Agent orany Secured Party in defending and enforcing such reinstatement shall be deemedto be included as a part of the Secured Obligations.

 

15.                                 Amendments;Waivers; Modifications.  This PledgeAgreement and the provisions hereof may not be amended, waived, modified,changed, discharged or terminated unless such amendment, waiver, modification,change, discharge or termination is evidenced in writing and signed by theCollateral Agent and the Pledgor.

 

16.                                 Successorsin Interest.  This Pledge Agreementshall create a continuing security interest in the Collateral and shall bebinding upon Pledgor, its successors and assigns and shall inure, together withthe rights and remedies of the Collateral Agent and the Secured Partieshereunder, to the benefit of the Collateral Agent and the Secured Parties andtheir successors and permitted assigns; provided, however, thatthe Pledgor may not assign its rights or delegate its duties hereunder withoutthe prior written consent of the requisite Lenders, as required by the

 

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Credit Agreement, and the Collateral Agent.  To the fullest extent permitted by law, Pledgor hereby releasesthe Collateral Agent and each Secured Party, and its successors and assigns,from any liability for any act or omission relating to this Pledge Agreement orthe Collateral, except, as applicable, for any liability arising from the grossnegligence or willful misconduct of the Collateral Agent, or such SecuredParty, or its officers, employees or agents.

 

17.                                 Notices.  All notices required or permitted to begiven under this Pledge Agreement shall be in conformance with Section 11.1of the Credit Agreement.

 

18.                                 Counterparts.  This Pledge Agreement may be executed in anynumber of counterparts, each of which where so executed and delivered shall bean original, but all of which shall constitute one and the same instrument.  It shall not be necessary in making proof ofthis Pledge Agreement to produce or account for more than one such counterpart.

 

19.                                 Headings.  The headings of the sections and subsectionshereof are provided for convenience only and shall not in any way affect themeaning, construction or interpretation of any provision of this PledgeAgreement.

# ** **

# **20.**                                 Governing Law.

 

THIS PLEDGE AGREEMENTSHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OFTHE STATE OF NORTH CAROLINA, WITHOUT REGARD TO CONFLICT OF LAW PROVISIONSTHEREOF EXCEPT TO THE EXTENT THAT PERFECTION AND REMEDIES ARE NECESSARILYGOVERNED BY THE LAWS OF ANOTHER JURISDICTION.

 

# **21.**                                 Waiver of Jury Trial.

 

EACH OF THE PLEDGOR ANDTHE COLLATERAL AGENT HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTEDUNDER APPLICABLE LAW ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDINGARISING OUT OF OR RELATING TO THIS PLEDGE AGREEMENT OR THE TRANSACTIONSCONTEMPLATED THEREBY AND TO THE FULLEST EXTENT PERMITTED BY LAW WAIVES ANYRIGHTS THAT IT MAY HAVE TO CLAIM OR RECEIVE CONSEQUENTIAL OR SPECIALDAMAGES IN CONNECTION WITH ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TOTHIS PLEDGE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY.

 

22.                                 Consentto Jurisdiction.

 

(a)                                  Anylegal action or proceeding with respect to this Pledge Agreement may be broughtin the courts of the State of North Carolina in Mecklenburg County, or of theUnited States for the Western District of North Carolina, and, by execution anddelivery of this Pledge Agreement, the Pledgor hereby irrevocably accepts forhimself and in respect of its property, generally and unconditionally, thenonexclusive jurisdiction of such courts. The Pledgor further irrevocably consents to the service of process inany manner permitted by law.  Nothingherein shall affect the right of any Secured Party to commence legalproceedings or to otherwise proceed against the Pledgor in any otherjurisdiction.

 

(b)                                 ThePledgor hereby irrevocably and unconditionally waives, to the fullest extent itmay legally and effectively do so, any objection which it may now or hereafterhave to the laying of venue of any suit, action or proceeding arising out of orrelating to this Pledge Agreement in the courts referred to in Section 22(a).  Each of the parties hereto hereby furtherirrevocably waives and agrees not to plead or claim in any such court that anysuch action or proceeding brought in any such court has been brought in aninconvenient forum.

 

23.                                 Severability.  If any provision of this Pledge Agreement isdetermined to be illegal, invalid or unenforceable, such provision shall befully severable and the remaining provisions shall remain in full force andeffect and shall be construed without giving effect to the illegal, invalid orunenforceable provisions.

 

24.                                 Entirety.  This Pledge Agreement, the Credit Agreement,the other Credit Documents and any other documents relating to the SecuredObligations represent the entire agreement of the parties hereto and thereto,and supersede all prior agreements and understandings, oral or written, if any,including any commitment letters or

 

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correspondence relating to the Credit Agreement, the other CreditDocuments or the transactions contemplated herein and therein.

 

25.                                 Survival.  All representations and warranties of thePledgor hereunder shall survive the execution and delivery of this PledgeAgreement, the Credit Agreement, the other Credit Documents, the delivery ofthe Notes under the Credit Agreement, the making of the loans under the CreditAgreement.

 

26.                                 OtherSecurity.  To the extent that any ofthe Secured Obligations are now or hereafter secured by property other than thePledged Collateral (including, without limitation, real and other personalproperty owned by Pledgor), or by a guarantee, endorsement or property of anyother Person, then the Collateral Agent and the Secured Parties shall have theright to proceed against such other property, guarantee or endorsement upon theoccurrence of any Event of Default, and the Collateral Agent and the SecuredParties have the right, in their sole discretion, to determine which rights,security, liens, security interests or remedies the Collateral Agent and theSecured Parties shall at any time pursue, relinquish, subordinate, modify ortake with respect thereto, without in any way modifying or affecting any ofthem or any of the Collateral Agent’ and the Secured Parties’ rights or theSecured Obligations under this Pledge Agreement, the Credit Agreement, theother Credit Documents or any other documents relating to the SecuredObligations.

 

[remainder of pageintentionally left blank]

 

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Each of the partieshereto has caused a counterpart of this Pledge Agreement to be duly executedand delivered as of the date first above written.

 

 
|                                                     | **PLEDGOR:**                                                        |
|----------------------------------------------------------|---------------------------------------------------------------------|
|                                                     |                                                                |
|                                                     | USRP HOLDING CORP., a  Texas corporation                            |
|                                                     |                                                                |
|                                                     | By:                                                                 |          /s/  Stacy M. Riffe |   |
|                                                     | Name:  Stacy M. Riffe                                          |
|                                                     | Title:  Chief Financial Officer                                |
|                                                     |                                                                |
|                                                     |                                                                |
| Accepted and agreed as  of the date first above written. |
|                                                     |                                                                |
|                                                     | **COLLATERAL  AGENT:**                                              |
|                                                     |                                                                |
|                                                     |                                                                |
|                                                     | BANK OF AMERICA, N.A.,  as Collateral Agent for the Secured Parties |
|                                                     |                                                                |
|                                                     |                                                                |
|                                                     | By:                                                                 |   |   |
|                                                     | Name:                                                               |   |   |
|                                                     | Title:                                                              |   |   |
|                                                          |                                                                     |  |  |  |  |  |  |

 

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Schedule 2(a)

to

Pledge Agreement

dated as of                ,2003 in favor of

the CollateralAgent

PLEDGED CAPITALSTOCK

 

 

1.                                       USRP(S&C), LLC, a Texas limited liability company.

 

----

 

Schedule 2(b)

to

Pledge Agreement

dated as of                ,2003 in favor of

the CollateralAgent

PLEDGED CAPITALSTOCK 

 

[None.]

 

3

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Exhibit 4(a)

to

Pledge Agreement

dated as of                ,2003 in favor of

the CollateralAgent

 

Irrevocable StockPower

 

 

FOR VALUE RECEIVED, theundersigned hereby sells, assigns and transfers to

 

 

the following shares of[Capital Stock] of                                            ,a                                :

 

| **No. of Shares** |   | **Certificate No.** |
|-------------------|--------|---------------------|
|              |   |                |
|              |   |                |

 

and irrevocably appoints                                                      its agent and attorney-in-fact to transfer all or any part of such capitalstock and to take all necessary and appropriate action to effect any suchtransfer.  The agent and attorney-in-factmay substitute and appoint one or more persons to act for him.

 
|   |                                                                          , |
|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   | a                            corporation                                                                                                                                                                                                                                                                                        |
|   |                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
|   | By:                                                                                                                                                                                                                                                                                                                                                                                                                                                     |   |   |
|   | Name:                                                                                                                                                                                                                                                                                                                                                                                                                                                   |   |   |
|   | Title:                                                                                                                                                                                                                                                                                                                                                                                                                                                  |   |   |
|        |                                                                                                                                                                                                                                                                                                                                                                                                                                                         |  |  |  |  |

 

4

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**EXHIBIT B**

 

**FORM OF AMENDEDAND RESTATED REVOLVING NOTE**

 

 

**AMENDEDAND RESTATED REVOLVING NOTE**

 
| $30,000,000 |   | July 31,  2003 |
|-------------|--------|---------------------|

 

FOR VALUE RECEIVED,U.S.  RESTAURANT  PROPERTIES OPERATING, L.P., a Delawarecorporation, USRP FUNDING 2002-A, L.P., a Texas limited partnership, USRP(S&C), LLC, a Texas limited liability company and USRP Holding Corp., aTexas corporation (collectively, the “Borrower”), hereby promise to payto the order of BANK OF AMERICA, N.A., its successors and assigns (the “Lender”),at the office of Bank of America, N.A., as Agent (the “Agent”), at 101North Tryon Street, Independence Center, NC1-001-15-04, Charlotte, NorthCarolina  28255 (or at such other placeor places as the holder hereof may designate), at the times set forth in theCredit Agreement dated as of May 31, 2002 among the Borrower, theGuarantors, the Lenders and the Agent (as it may be as amended, modified,restated or supplemented from time to time, the “Credit Agreement”; allcapitalized terms not otherwise defined herein shall have the meanings setforth in the Credit Agreement), but in no event later than the Maturity Date,in Dollars and in immediately available funds, the principal amount of **THIRTY MILLION AND NO/100 DOLLARS ($30,000,000)**or, if less than such principal amount, the aggregate unpaid principal amountof all Revolving Loans made by the Lender to the Borrower pursuant to theCredit Agreement, and to pay interest from the date hereof on the unpaidprincipal amount hereof, in like money, at said office, on the dates and at therates selected in accordance with Section 2.1(d) of the Credit Agreement.

 

Upon the occurrence andduring the continuance of an Event of Default, the balance outstandinghereunder shall bear interest as provided in Section 3.1 of the CreditAgreement.  Further, in the event thepayment of all sums due hereunder is accelerated under the terms of the CreditAgreement, this Note, and all other indebtedness of the Borrower to the Lendershall become immediately due and payable, without presentment, demand, protestor notice of any kind, all of which are hereby waived by the Borrower.

 

In the event this Note isnot paid when due at any stated or accelerated maturity, the Borrower agrees topay, in addition to the principal and interest, all costs of collection,including reasonable attorneys’ fees.

 

This Note and the Loansevidenced hereby may be transferred in whole or in part only by registration ofsuch transfer on the Register maintained by or on behalf of the Borrower asprovided in Section 11.3(c) of the Credit Agreement.

 

This Note is an amendmentto, and is in substitution and replacement of that certain Revolving Note datedas of May 31, 2002 in the principal amount of $35,000,000.00 (the “ReplacedNote”).  This Note represents thesame indebtedness represented by the Replaced Note and is not intendedto constitute a novation in any manner whatsoever.

 

[remainder of pageleft intentionally blank – signature page to follow]

 

5

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IN WITNESS WHEREOF, theBorrower has caused this Note to be duly executed by its duly authorizedofficer as of the day and year first above written.

 
| **BORROWER:** | **U.S.  RESTAURANT  PROPERTIES OPERATING, L.P.** |
|---------------|------------------------------------------------------------|
|          |                                                       |
|          | By:  USRP MANAGING, INC.                              |
|          |                                                       |
|          |                                                       | By: |   | /s/ Stacy M. Riffe |   |
|          |                                                       | Name:  Stacy M. Riffe |
|          |                                                       | Title:  Chief Financial Officer |
|          |                                                       |
|          |                                                       |
|          | **USRP  FUNDING 2002-A, L.P.**                             |
|          |                                                       |
|          | By:  USRP (SFGP) 2, LLC                               |
|          |                                                       |
|          |                                                       | By: |   | /s/ Stacy M. Riffe |   |
|          |                                                       | Name:  Stacy M. Riffe |
|          |                                                       | Title:  Chief Financial Officer |
|          |                                                       |
|          |                                                       |
|          | **USRP  (S&C), LLC**                                   |
|          |                                                       |
|          | By:  USRP Holding Corp.                               |
|          |                                                       |
|          |                                                       | By: |   | /s/ Stacy M. Riffe |   |
|          |                                                       | Name:  Stacy M. Riffe |
|          |                                                       | Title:  Chief Financial Officer |
|          |                                                       |
|          |                                                       |
|          | **USRP  HOLDING CORP.**                                    |
|          |                                                       |
|          |                                                       | By: |   | /s/ Stacy M. Riffe |   |
|          |                                                       | Name:  Stacy M. Riffe |
|          |                                                       | Title:  Chief Financial Officer |
|               |                                                            |  |  |  |  |  |  |

 

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