**Exhibit10.1**

 

**FOURTH AMENDMENT TO CREDIT AGREEMENT**

 

Dated as of June30, 2003

 

This **FOURTH****AMENDMENT TO CREDIT AGREEMENT**(this“Agreement”) by and among**U.S.  RESTAURANT PROPERTIES OPERATING L.P.**, aDelaware limited partnership (“USRP Operating” or the “PrincipalBorrower”), **USRP FUNDING 2002-A, L.P.**, a Texas limited partnership (the “GeneralSPE); collectively, with USRP Operating, the “Borrower”), **USRPMANAGING, INC.**, a Delaware corporation and the general partner ofUSRP Operating, as a Guarantor (the “General Partner”), **U.S.RESTAURANT PROPERTIES, INC.**, a Maryland corporation, as a Guarantor(“USRP REIT”), the Subsidiary Guarantors (as defined in the CreditAgreement referenced below), the Lenders (as defined in the Credit Agreement), **BANK OFAMERICA, N.A.**, as Agent for the Lenders (in such capacity, the “Agent”)is an amendment to the terms set forth in thatcertain $35,000,000 Credit Agreement dated as of May 31, 2002 among theBorrower, the General Partner, the Subsidiary Guarantors, the Agent, the Lendersand Banc of America Securities LLC, as Sole Lead Arranger and SoleBook Manager (in such capacity “BAS”), as amended or modified bythe terms of that certain letter agreement dated as of July 1, 2002 and thatcertain letter agreement dated as of September, 2002, as further amended bythat certain First Amendment to Credit Agreement dated as of September, 2002,as further amended by that certain Assignment of Account (Borrower CollateralAccounts), Agreement Relating to Letters of Credit and Second Amendment toCredit Agreement dated as of April 30, 2003 and as further amended by thatcertain Third Amendment to Credit Agreement dated as of May 31, 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 otherwisedefined shall have the meanings given to such terms in the Credit Agreement.

 

**WHEREAS**, theBorrower has requested and the Lenders and Administrative Agent have agreed toamend the Credit Agreement on the terms and conditions set forth herein;

 

**NOW, THEREFORE**, for good and valuable consideration, thereceipt of which is hereby acknowledged by the parties hereto, the partieshereto agree as follows:

 

**1.****             Amendments toCredit Agreement.**

 

(a)           The followingdefinitions to the following terms are hereby added to ***Section 1.1*** of the Credit Agreement in theirproper alphabetical order:

 

““1998Senior Notes” means the “Notes” issued in connection with (a) that certainNote Purchase Agreement dated as of October 15, 1998 among USRP Operating, theUSRP REIT and the purchasers referenced therein and (b) all documents,agreements or instruments executed in connection therewith (including anyamendments, restatements, supplements or modifications with respect to any ofthe foregoing and any Indebtedness extendingthe maturity of, refunding, refinancing or replacing, in whole or in part, anyof the foregoing).”

 

““1998Senior Note Obligations” means a collective reference to, withoutduplication, all obligations and liabilities of USRP Operating and the USRPREIT under or in connection with (a) the 1998 Senior Notes, (b) that certainNote Purchase Agreement dated as of October 15, 1998 among USRP Operating, theUSRP REIT and the purchasers referenced therein, and (c) all other documents,agreements or instruments executed in connection with any of the foregoing(including any amendments, restatements, supplements or modifications withrespect to any of the foregoing and specifically including any obligationsunder any Indebtedness extending thematurity of, refunding, refinancing or replacing, in whole or in part, any ofthe foregoing).”

 

““Debt Issuance” means the issuance of anyIndebtedness for borrowed money by any Consolidated Party.”

 

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““OutstandingAmount” means (i) with respect to Loans on any date, the aggregateoutstanding principal amount thereof after giving effect to any borrowings andprepayments or repayments of Revolving Loans, as the case may be, occurring onsuch date; (ii) with respect to any LOC Obligations on any date, theamount of such LOC Obligations on such date after giving effect to any issuanceof a Letter of Credit occurring on such date and any other changes in theaggregate amount of the LOC Obligations as of such date, including as a resultof any reimbursements of outstanding unpaid drawings under any Letters ofCredit or any reductions in the maximum amount available for drawing underLetters of Credit taking effect on such date; and (iii) with respect to anyDerivative Exposure Reserve on any date, the aggregate amount reserved pursuantto Section 2.3 hereof after giving effect to any increase or decrease thereofas of such date.”

 

““Preferred Stock”****means, with respect to anyPerson, shares of Capital Stock in such Person which are entitled to preferenceor priority over any other Capital Stock in such Person in respect of thepayment of dividends or distribution of assets upon liquidation or both.”

 

““Total Outstandings” means the aggregateOutstanding Amount of (i) all Revolving Loans; (ii) all L/C Obligations and(iii) all Derivative Exposure Reserves.”

 

(b)          The terms “ExtendedMaturity Date” and “Initial Maturity Date” contained in ***Section 1.1*** of the Credit Agreement arehereby deleted in their entirety.

 

(c)           The definitions of the terms “FFO DistributionAllowance”, “Fully Satisfied”, “Maturity Date”, “Net Cash Proceeds”, “RevolvingCommitment”, “Revolving Committed Amount”, “Tangible Net Worth” and  “Total Liabilities” contained in ***Section 1.1*** of theCredit Agreement are hereby deleted in their entirety and replaced,respectively, with the following:

 

““FFO Distribution Allowance” means, for eachfiscal quarter of the Borrower, an amount equal to 95% (or, for the fiscalquarters ending as of June 30, 2003 and September 30, 2003, 97%) of FFO forsuch quarter, plus, to the extent not otherwise distributed prior tocommencement of the quarter for which such calculation is being performed, 95%(or, for the fiscal quarters ending as of June 30, 2003 and September 30, 2003,97%) of FFO for the immediately preceding three fiscal quarters.”

 

““Fully Satisfied” means, (a) with respectto the Credit Party Obligations asof any date, that, as of such date, (i) all principal of and interestaccrued to such date which constitute CreditParty Obligations shall have been paid in full in cash, (ii) allfees, expenses and other amounts then due and payable which constitute Credit Party Obligations shall have beenpaid in full in cash, (iii) all outstanding Letters of Credit shall havebeen (A) terminated, (B) fully cash collateralized or(C) secured by one or more letters of credit on terms and conditions, andwith one or more financial institutions, reasonably satisfactory to the IssuingLender and (iv) the Commitments shall have expired or been terminated infull and (b) with respect to the 1998 Senior Note Obligations, that, as of suchdate, all principal of and interest accrued to such date which constitute 1998 Senior Note Obligations shall havebeen paid in full in cash and all fees, expenses and other amounts then due andpayable which constitute 1998 Senior Note Obligationsshall have been paid in full in cash.”

 

““Maturity Date” shall have the meaning given tosuch term in Section 2.1(c) hereof.”

 

““Net Cash Proceeds” means the aggregate proceedspaid in cash or Cash Equivalents received by any Consolidated Party in respectof any Asset Disposition, Debt Issuance or Equity Issuance (as applicable), netof (a) direct costs (including, without limitation, legal, accounting andinvestment banking fees, and sales commissions), (b) taxes paid or payableas a result thereof and (c) in the case of any Asset Disposition, theamount necessary to retire any Indebtedness secured by a Lien on the related Property; it being understood that “Net Cash Proceeds”shall include, without limitation, any cash or Cash Equivalents received uponthe sale or other disposition of any non-cash consideration received by anysuch Consolidated Party in connection with any such Asset Disposition, DebtIssuance or Equity Issuance.”

 

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““Revolving Commitment” means, with respect toeach Lender, the commitment of such Lender in an aggregate principal amount asset forth on Schedule 1.1(a) attached hereto, as such schedule maybe modified in connection with any assignment made in accordance withSection 11.3, as a result of the application of Section 3.20 hereofor as a result of the application of Section 3.4 hereof.”

 

““Revolving Committed Amount” means$30,000,000.00, as such amount may be adjusted pursuant to and in accordancewith the terms of this Credit Agreement (including, without limitation,pursuant to Sections 3.4 hereof).”

 

““Tangible Net Worth” means, as of any givencalculation date, the sum of (a) Total Tangible Assets, less (b) the sumof (i) Total Liabilities less (ii) the aggregate of the amounts added toTotal Liabilities pursuant to clauses (b) and (d) of the definition thereof andin connection with proviso items (i) and (ii)(A) and (C) contained in suchdefinition.”

 

““Total Liabilities” means the sum of (a) total liabilities of theConsolidated Parties on a consolidated basis, as determined in accordance withGAAP, plus (b) an amount equal to the aggregate total liabilities, asdetermined in accordance with GAAP, of each Minority Interest Entity multipliedby the respective Minority Interest of each such entity plus (c) withoutduplication, the Indebtedness of the Consolidated Parties on a consolidatedbasis plus (d) without duplication, the aggregate of Indebtedness(including, without limitation, all Contingent Obligations) of each MinorityInterest Entity multiplied by the respective Minority Interest of each suchentity; provided, that (i) in each case, all of the above amounts nototherwise adjusted to account for Outside Interests shall be adjusted to deducttherefrom the pro rata share of such amounts allocable to the Outside Interests(except to the extent any Credit Party would be legally liable for the fullamount of such liabilities) and (ii) notwithstanding anything contained hereinto the contrary, “Total Liabilities” shall include, without duplication (A) all obligations of any Consolidated Party(including, without limitation USRP/HCI Partnership 1, L.P. to purchase,redeem, retire, defease or otherwise make any payment in respect of anyPreferred Stock of USRP/HCI Partnership 1, L.P. or any entity in which it ownsany Capital Stock, valued, in the case of redeemable Preferred Stock, at thegreater of its voluntary or involuntary liquidation preference plus accrued andunpaid dividends; (B) the maximum amount that could be owed by anyConsolidated Party with respect to all of such Consolidated Party’s otherPreferred Stock and (C) the amount equal to (1) the maximum amount that couldbe owed by any Minority Interest Entity with respect to such Minority InterestEntity’s Preferred Stock, multiplied by (2) the respective Minority Interest of each such entity.”

 

(d)          ***Schedule1.1(a)*** attached to theCredit Agreement is hereby replaced with the document attached as Exhibit Ahereto.

 

(e)           ***Section2.1(b)(i)*** of the CreditAgreement is hereby deleted in its entirety and replaced with the following:

 

“(i)          Noticeof Borrowing.  The Borrower shallrequest a Revolving Loan borrowing by written notice (or telephonic noticepromptly confirmed in writing in the form of a Notice of Borrowing) to theAgent not later than 11:00 A.M. (Charlotte, North Carolina time) on the Business Day prior to the dateof the requested borrowing in the case of Base Rate Loans, and on the thirdBusiness Day prior to the date of the requested borrowing in the case ofEurodollar Loans.  Each such request forborrowing shall be irrevocable and shall specify (A) that a Revolving Loanis requested, (B) the date of the requested borrowing (which shall be aBusiness Day), (C) the aggregate principal amount to be borrowed,(D) whether the borrowing shall be comprised of Base Rate Loans,Eurodollar Loans or a combination thereof, and if Eurodollar Loans arerequested, the Interest Period(s) therefor, and (E) that all conditions to suchborrowing contained herein (including those set forth in Section 5.2 hereof)have been fully satisfied.  If theBorrower shall fail to specify in any such Notice of Borrowing (I) anapplicable Interest Period in the case of a Eurodollar Loan, then such noticeshall be deemed to be a request for an Interest Period of one month, or(II) the type of Revolving Loan requested, then such notice shall bedeemed to be a request for a Base Rate Loan hereunder.  The Agent shall give notice to each affectedLender promptly upon receipt of each Notice of Borrowing pursuant to thisSection 2.1(b)(i), the contents thereof and each such Lender’s share ofany borrowing to be made pursuant thereto.”

 

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(f)           ***Exhibit 2.1(b)(i)***attached to******the Credit Agreementis hereby deleted in its entirety and replaced with the document attachedhereto as Exhibit B.

 

(g)          ***Section 2.1(c)*** of the Credit Agreement is hereby deleted in itsentirety and replaced with the following:

 

“(c)         Repayment. The principal amount of all Revolving Loans andall other amounts owed by the Borrower or any Credit Party hereunder or underany Credit Document shall be due and payable in full May 31, 2004 (the “MaturityDate”) unless accelerated sooner pursuant to the terms and conditions setforth herein.”

 

(h)          The following ***Section 3.3(b)(i)(E)***is hereby added to ***Section 3.3(b)(i)*** ofthe Credit Agreement immediately following ***Section 3.3(b)(i)(D)*** thereof:

 

“(E)         AssetDispositions; Equity Issuances; Debt Issuances. Immediately upon the receipt by any Consolidated Party of the proceedsfrom any Asset Disposition, Equity Issuance or Debt Issuance occurring prior toSeptember 30, 2003, the Borrower shall prepay the Credit Party Obligations inan aggregate amount equal to 100% of the Net Cash Proceeds of such AssetDisposition, Equity Issuance or Debt Issuance to the extent required pursuantto Section 7.15 hereof.”

 

(i)            ***Section3.3(b)(ii)*** of the Credit Agreementis hereby deleted in its entirety and replaced with the following:

 

“(ii)         Applicationof Mandatory Prepayments.  All amounts required to be paid pursuant tothis Section 3.3(b) shall be applied as follows: (A) with respect toall amounts prepaid pursuant to Section 3.3(b)(i)(A), (D) or (E), toRevolving Loans and (after all Revolving Loans have been repaid) to a cashcollateral account in respect of LOC Obligations, (B) with respect to allamounts prepaid pursuant to Section 3.3(b)(i)(B), to a cash collateralaccount in respect of LOC Obligations and (C) with respect to all amountsprepaid pursuant to Section 3.3(b)(i)(C), to a cash collateral account inrespect of the Borrower’s Aggregate Derivative Reserve Amount obligations.  Withinthe parameters of the applications set forth above, prepayments shall beapplied first to Base Rate Loans and then to Eurodollar Loans in direct orderof Interest Period maturities.  Allprepayments under this Section 3.3(b) shall be subject toSection 3.12, but otherwise without premium or penalty, and shall be accompanied by interest on theprincipal amount prepaid through the date of prepayment.”

 

(j)            ***Section 3.4(b)*** of the Credit Agreement is hereby deleted in itsentirety and the following Sections 3.4(b) and (c) are hereby added to theCredit Agreement immediately following ***Section 3.4(a)*** thereof:

 

“(k)         MandatoryReduction of Revolving Committed Amount.  Notwithstanding anythingcontained herein to the contrary, the Revolving Committed Amount shall, onSeptember 30, 2003, be automatically and immediately reduced to $20,000,000.00(and the Revolving Commitments will be reduced accordingly on a pro ratabasis).  The Borrower shall,concurrently with such reduction in the Revolving Committed Amount, repay theLoans to the extent required in Section 3.3(b) hereof.

 

(c)           MaturityDate.  Except to the extent terminated sooner pursuant toSections 3.4(a) or (b) above or Section 9.2, the RevolvingCommitments of the Lenders and the LOC Commitment of the Issuing Lender shallautomatically terminate on the Maturity Date.”

 

(l)            ***Section 6.15*** of the Credit Agreement ishereby deleted in its entirety and replaced with the following:

 

“**6.15****      Useof Loan Proceeds and Letters of Credit.**

 

TheCredit Parties have, during the term hereof, used all Loan proceeds and Lettersof Credit for the purposes required pursuant to Section 7.9 of this Agreementand have not requested or received any Loan proceeds in violation of Section7.15 hereof.”

 

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(m)          The following ***Section 6.29*** is hereby added to the CreditAgreement immediately following ***Section 6.28*** thereof:

 

**“6.29****      TaxShelter Regulations.**

 

Borrowerdoes not intend to treat the Loans and related transactions as being a“reportable transaction” (within the meaning of Treasury RegulationSection 1.6011-4).  In the eventBorrower determines to take any action inconsistent with such intention, itwill promptly notify the Agent thereof. If Borrower so notifies the Agent, Borrower acknowledges that one ormore of the Lenders may treat its Loans as part of a transaction that issubject to Treasury Regulation Section 301.6112-1, and such Lender or Lenders,as applicable, will maintain the lists and other records required by suchTreasury Regulation.”

 

(n)          The following ***Sections 7.1(n)*** and ***(o)*** are hereby added to the Credit Agreement immediatelyfollowing ***Section 7.1(m)***thereof:

 

“(n)         ReportableTransactions.  Promptly afterBorrower has notified Agent of any intention by Borrower to treat Loans andrelated transactions as being a “reportable transaction” (within the meaning ofTreasury Regulation Section 1.6011-4), a duly completed copy of IRS Form 8886or any successor form (and Borrower hereby agrees that the Agent and eachLender may disclose to any and all Persons, without limitation of any kind, anyinformation with respect to the “tax treatment” and “tax structure” (in eachcase, within the meaning of Treasury Regulation Section 1.6011-4) of thetransactions contemplated hereby and all materials of any kind (includingopinions or other tax analyses) that are provided to the Agent or such Lenderrelating to such tax treatment and tax structure).

 

(o)           Refinancings/Extensionsof 1998 Senior Note Obligations. Prior to the effectiveness of any refinancing or extension of the 1998Senior Note Obligations, a summary of the material terms and conditions thereof(including, without limitation, details regarding the maturity and amount ofsuch obligations, as modified, any fees associated with such transaction and anychange in the rate of interest paid to or the return received by the holders ofsuch obligations) and any additional information or documents that may berequested by the Agent in connection therewith.”

 

(o)          ***Section 7.9*** of theCredit Agreement is hereby deleted in its entirety and replaced with thefollowing:

 

## **“7.9**        Use of Loan Proceeds, Letters of Credit andDerivative Exposure Reserve.

 

The proceeds of the Loans hereunder shall be used solelyby the Borrower to provide for working capital and general corporate purposesof the Borrower and its Subsidiaries and the Letters of Credit shall be usedonly for or in connection with appeal bonds, reimbursement obligations arisingin connection with surety and reclamation bonds, reinsurance, domestic orinternational trade transactions and obligations not otherwise aforementionedrelating to transactions entered into by the applicable account party in theordinary course of business; provided, however, that, notwithstanding anythingcontained herein or in any Credit Document to the contrary, (i) for the period commencingas of June 30, 2003 and ending as of the date on which the 1998 SeniorNote Obligations are Fully Satisfied (or otherwise extended in accordance withSection 9.1(p) hereof), the aggregate amount of Total Outstandings allocable toLoan proceeds drawn and Letters of Credit issued for purposes other than therepayment of the 1998 Senior Note Obligations shall not exceed $15,000,000 (itbeing understood and agreed that, as of June 30, 2003, such aggregateamount of Total Outstandings allocable to Loan proceeds drawn and Letters ofCredit issued for purposes other than the repayment of the 1998 Senior NoteObligations is equal to$                );and (ii) at all other times, the aggregate amount of Total Outstandingsallocable to Loan proceeds drawn and Letters of Credit issued for purposesother than the repayment of the 1998 Senior Note Obligations shall not exceed$20,000,000; provided, further, that for purposes of calculating TotalOutstandings allocable to Loan proceeds drawn and Letters of Credit issued forpurposes other than the repayment of the 1998 Senior Note Obligations, allrepayments of the Credit Party Obligations received following June 30, 2003shall be deemed to repay,

 

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first, Total Oustandingsallocable to Loan proceeds drawn for the purpose of repaying the 1998 SeniorNote Obligations (if any) and, second, Total Outstandings allocable to Loanproceeds drawn and Letters of Credit issued for purposes other than therepayment of the 1998 Senior Note Obligations. All drawings of Loan proceeds and all Letter of Credit issuanceshereunder shall be certified by the chief financial officer of the PrincipalBorrower, in a manner acceptable to Agent, as to their designated use. Proceeds paid with respect to the Derivative Exposure Reserve shall beused only in connection with the Borrower’s exposure under BOA DerivativeInstruments.  No proceeds of the Loansshall be used to finance the purchase of “margin stock” as such term is definedin Regulation U of the Federal Reserve Board or finance the acquisition ofany investments in commercial mortgage-backed securities.”

 

(p)          ***Section 7.11(a)*** of the Credit Agreement ishereby deleted in its entirety and replaced with the following:

 

“(a)         Leverage Ratio.  The Leverage Ratio, as of thelast day of each fiscal quarter of the Consolidated Parties (except the fiscalquarters ending as of June 30, 2003 and September 30, 2003), shall be less thanor equal to 0.70 to 1.0.  The LeverageRatio, as of the last day of the fiscal quarters of the Consolidated Partiesending as of June 30, 2003 and September 30, 2003, shall be less than or equalto 0.73 to 1.0.”

 

(q)          The following sentence is hereby added to the endof ***Section 7.11***immediately following (but not included as part of) clause (f):

 

“For clarification purposes, the Credit Parties shall bepermitted, in determining compliance with the financial covenants set forthabove in clauses (a), (c), (d) and (f) of this Section 7.11, to round theresults of the final ratio calculations (but not calculations of any of otheramounts used in determining such ratios) to the nearest hundredth (.01).”

 

(r)           The following ***Section 7.15*** is hereby added to the CreditAgreement immediately following ***Section 7.14*** thereof:

 

“**7.15****      Applicationof Certain Proceeds.**

 

Notwithstanding anythingcontained herein to the contrary:

 

(a)           For the periodcommencing June 30, 2003 and ending as of September 30, 2003, 100% of the NetCash Proceeds received by any Consolidated Party in connection with any AssetDisposition, any Equity Issuance and any Debt Issuance shall be immediatelyapplied by such Consolidated Party in the following order of priority:

 

(i)prior to the date on which 100% of the 1998 Senior Note Obligations are FullySatisfied, such Net Cash Proceeds shall be applied first, to the repayment ofthe 1998 Senior Note Obligations and/or the Credit Party Obligations (with thechoice of application between the 1998 Senior Note Obligations and the CreditParty Obligations to be in the discretion of the applicable Consolidated Party)until each are Fully Satisfied and second, in the discretion of the Borrower;

 

(ii)following the date on which 100% of the 1998 Senior Note Obligations are FullySatisfied, such Net Cash Proceeds shall be applied first, to the repayment ofthe Credit Party Obligations to the extent the Credit Party Obligations are inexcess of $20,000,000 as of the date on which such Net Cash Proceeds arereceived by the applicable Consolidated Party and second, as otherwisepermitted pursuant to the terms of this Agreement and the other CreditDocuments.

 

(b)          The Borrower shall, onor prior to July 1, 2003, apply the $15,200,000 in Net Cash Proceeds obtainedby it in connection with that certain preferred stock Equity Issuance on orabout June 19, 2003 (which amount, the Borrower hereby confirms, represents100% of the Net Cash Proceeds derived from such Equity Issuance) to therepayment of the 1998 Senior Note Obligations and shall, immediately

 

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following the making ofsuch prepayment, provide evidence of such repayment to the Agent (such evidenceto be in form and substance acceptable to the Agent).”

 

(s)           ***Section 9.1(c)(i)*** ofthe Credit Agreement is hereby deleted in its entirety and replaced with thefollowing:

 

“(i)          default in the due performance or observance of any term, covenant oragreement contained in Sections 7.2, 7.9, 7.11, 7.12 or 7.15 orSection 8;”

 

(t)           The following ***Section 9.1(p)*** is hereby added to theCredit Agreement immediately following ***Section 9.1(o)*** thereof:

 

“(p)        there exists any defaultwith respect to the 1998 Senior Notes or any documents, agreements orinstruments executed in connection therewith or any portion of the 1998 SeniorNote Obligations is not Fully Satisfied on or prior to August 1, 2003(regardless of whether the currently-effective maturities of any suchobligations are extended, refinanced or otherwise modified); providedhowever,that it shall not be an Event of Default hereunder to the extent all of thethen-remaining 1998 Senior Note Obligations are, on or prior to August 1, 2003,extended or refinanced in amounts, pursuant to terms and conditions and fortime periods that are acceptable to the Agent in its absolute discretion; provided,further, that (i) Agent’s acceptance of any refinancing or extension ofthe 1998 Senior Note Obligations shall not be effective except to the extentevidenced in a writing signed by Agent and (ii) notwithstanding the foregoing,the Agent shall be deemed to have approved of any refinancing(s) orextension(s) of the 1998 Senior Note Obligations to the extent that (A) theaggregate amount of the 1998 Senior Note Obligations refinanced or extendedpursuant to such refinancing(s) or extension(s) is equal to or less than$5,000,000, (B) such refinancing or extension does not cause the maturity ofsuch refinanced or extended 1998 Senior Note Obligations to extend beyondSeptember 30, 2003 and (C) the terms and conditions of such refinancing orextension are disclosed to the Agent prior to the effectiveness thereof inaccordance with Section 7.1(o) hereof.”

 

(u)          The Agent’s addressesfor notice under the Credit Agreement set forth in ***Section 11.1*** of the Credit Agreement ishereby deleted in its entirety and replaced with the following:

 
| “If  to the Agent (for credit-related matters): | Matthew  W. Sadler                                          |
|------------------------------------------------------|-------------------------------------------------------------|
|                                                 | Vice  President                                             |
|                                                 | Global  Portfolio Management, Real Estate                   |
|                                                 | Bank  of America, N.A.                                      |
|                                                 | 231  South LaSalle Street                                   |
|                                                 | M/C:  IL1-231-10-35                                    |
|                                                 | Chicago,  IL  60697                                    |
|                                                 | Phone:  (312) 828-7107                                 |
|                                                 | Fax:  (312) 974-4970                                   |
|                                                 | E-mail:  matthew.w.sadler@bankofamerica.com            |
|                                                 |                                                        |
| If  to the Agent (for administrative matters):       | Charlene  E. Wright-Jones                                   |
|                                                 | Assistant  Vice President                                   |
|                                                 | Bank  of America, N.A.                                      |
|                                                 | 231  South LaSalle Street                                   |
|                                                 | Mail  code:  IL1-231-10-30                             |
|                                                 | Chicago,  IL 60697                                          |
|                                                 | Phone:  312-828-4160                                   |
|                                                 | Fax:  312-828-3950                                     |
|                                                 | E-mail:  charlene.wright-jones@bankofamerica.com” |

 

(v)          The following sentence is hereby added to the end of ***Section 11.14*** of theCredit Agreement:

 

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“Notwithstandinganything herein to the contrary, the “information” to be held confidential byLender Parties pursuant to this Section 11.14 shall not include, and eachLender Party may disclose to any and all Persons, without limitation of anykind, any information with respect to the “tax treatment” and “tax structure”(in each case, within the meaning of Treasury Regulation Section 1.6011-4) ofthe transactions contemplated hereby and all materials of any kind (includingopinions or other tax analyses) that are provided to such Lender Party relatingto such tax treatment and tax structure; provided that with respect toany document or similar item that in either case contains information concerningthe tax treatment or tax structure of the transaction as well as otherinformation, this sentence shall only apply to such portions of the document orsimilar item that relate to the tax treatment or tax structure of the Loans,Letters of Credit and transactions contemplated hereby.”

 

**2.****             Reaffirmation ofRepresentations.**  The Borrower,General Partner and each of the other Guarantors hereby repeat and reaffirm allrepresentations and warranties (as modified, supplemented or amended herein)made by such party to the Agent and the Lenders in the Credit Agreement and theother Credit Documents to which it is a party on and as of the date hereof (or,if any representation and warranty expressly relates to an earlier date, on andas of such earlier date) with the same force and effect as if suchrepresentations and warranties were set forth in this Agreement in full.  Each of the undersigned Credit Partieshereby acknowledges and consents to the terms, conditions and revisions setforth in this Agreement.

 

**3.****             Reaffirmation ofGuaranty.** The General Partner and each of the other Guarantors herebyeach 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.

 

**4.****             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)           a counterpart of thisAgreement duly executed by each of the parties listed in the preamble hereof;

 

(b)          payment by Borrower ofall outstanding fees and expenses of the Agent, the Issuing Lender, theCollateral Agent, each Lender and the Agent’s, Issuing Lender’s, CollateralAgent’s and Lenders’ counsel (if any) incurred in connection with thepreparation of this Agreement and all otherfees and expenses relating to the preparation, execution and delivery of thisAgreement or otherwise related to the Credit Agreement or the Credit Documentswhich are due and payable on the date hereof or as of the date of theapplicable advance, including, without limitation, payment to the Agent,Issuing Lender, Collateral Agent and the Lenders of attorneys’ fees,consultants’ fees, travel expenses, all fees and expenses associated with priortransactions entered into or contemplated by and between Borrower and the Agent,Collateral Agent, Issuing Lender and/or the Lenders and all other fees andexpenses due and then-owing from the Borrower to the such Persons pursuant tothe terms hereof and the Credit Documents; and

 

(c)           such other documents,instruments and agreements as the Agent may reasonably request.

 

**5.****             AdditionalRepresentations.**  The Borrower,General Partner and each of the other Guarantors collectively represent andwarrant to the Agent and the Lenders that:

 

(a)           Authorization.  The Borrower, General Partner and each other Guarantor, respectively, has theright and power and has obtained all authorizations necessary to execute anddeliver this Agreement and to perform its respective obligations hereunder andunder the Credit Agreement, as amended by this Agreement, in accordance withtheir respective terms.  This Agreementhas been duly executed and delivered by a duly authorized officers of theBorrower, General Partner and each other Guarantor, respectively, and each ofthis Agreement and the Credit Agreement, 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.

 

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(b)          Compliance with Laws,etc.  The execution and delivery bythe Borrower, General Partner and the other Guarantors of this Agreement andthe performance by the Borrower, General Partner and/or the other Guarantors ofthis Agreement and the Credit Agreement, as amended by this Agreement, inaccordance with their respective terms, does not and will not, by the passageof time, the giving of notice or otherwise: (i) require any GovernmentalApproval or violate any Applicable Law (including all Environmental Laws)relating to the Borrower, General Partner, any of the other Guarantors or anyother Consolidated Party; (ii) conflict with, result in a breach of orconstitute a default under the organizational documents of the Borrower,General Partner, any of the other Guarantors or any other Consolidated Party,or any indenture, agreement/or other instrument to which the Borrower, GeneralPartner, any of the other Guarantors or any other Consolidated Party is a partyor by which it or any of its respective properties may be bound; or (iii)result in or require the creation or imposition of any Lien upon or withrespect to any property now owned or hereafter acquired by the Borrower,General Partner, any other Guarantor or any other Consolidated Party other thanin favor of the Agent for the benefit of the Lenders; and

 

(c)           No Default.  No Default or Event of Default has occurredand is continuing as of the date hereof nor will exist immediately after givingeffect to this Agreement.

 

**6.****             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.

 

**7.****             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.

 

**8.****             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.

 

**9.****             GOVERNING LAW.**  THIS AGREEMENT SHALL BE GOVERNED BY, ANDCONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH CAROLINAAPPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.

 

**10.****          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.

 

**11.****          Certain References.**  Each reference to the Credit Agreement inany of the Credit Documents shall be deemed to be a reference to the CreditAgreement as amended by this Agreement.

 

**12.****          Expenses; Opinion.**  The Borrower shall reimburse the CollateralAgent, Issuing Lender, Agent and Lenders upon demand for all reasonable costs andexpenses (including reasonable attorneys’ fees) incurred by the such Persons inconnection with the preparation, negotiation and execution of this Agreementand the other

 

9

----

 

agreements and documentsexecuted and delivered in connection herewith. Additionally, the Borrower shalldeliver, within thirty (30) days of the date hereof, a legal opinion fromcounsel to the Credit Parties concerning (a) the due authorization, execution,delivery and enforceability of this Agreement and the Credit Agreement, asamended to date and (b) such other matters as may be reasonably requested bythe Agent, in each case in form and substance acceptable to the Agent.

 

**13.****          Release.**  Each Credit Party hereby representsand warrants that it has no claims, counterclaims, offsets, or defenses to anyof the Credit Documents, or to the performance of their respective obligationsthereunder and, in consideration ofthe Lenders’ and Agent’s willingness to grant the amendment referenced herein, hereby releases the Issuing Lender, Agent, theCollateral Agent, the Lenders, BAS, and each of their respective officers,employees, representatives, agents, counsel and directors from any and allactions, causes of action, claims, demands, damages and liabilities of whateverkind or nature, in law or in equity, now known or unknown, suspected orunsuspected to the extent that any of the foregoing arises from any action orfailure to act on or prior to the date hereof.

 

**14.****          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 prospective applicationonly, unless otherwise specifically stated herein.

 

**15.****          No Novation.**The parties hereto intend this Agreement to evidence the amendments to theterms of the existing indebtedness of the Borrower and Guarantors to theLenders as specifically set forth herein and do not intend for suchamendments to constitute a novation in any manner whatsoever.

 

**16.****          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 LEFTBLANK - SIGNATURE PAGE(S) FOLLOW(S)]***

 

10

----

 

**IN WITNESSWHEREOF**, each of theparties hereto has caused a counterpart of this Agreement to be duly executedand delivered 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 |   |
|                        |                                                         |   |   |   |
|                        |                                                         |   |   |   |
| **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 |   |
|                        |                                                         |   |
|                        |                                                         |   |
| **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 |   |
|                             |                                                              |  |  |  |  |  |  |  |

 

11

----

 
|   | **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 |   |
|   |                                    |   |
|   | :                                       |   |
|        |                                         |  |  |  |  |  |  |

 

12

----

 
|   | **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 |   |
|        |                              |  |  |  |  |  |  |

 

13

----

 
|   | **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 |   |
|   |                                             |   |
|   |                                             |   |
|   | **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 |   |
|        |                                                  |  |  |  |  |  |  |

 

14

----

 
|   | **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 |   |
|   |                                |   |
|   |                                |   |
|   | **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 |   |
|        |                                     |  |  |  |  |  |  |

 

 

15

----

 
|   | **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 |   |
|   |                               |   |
|   |                               |   |
|   | **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 |   |
|        |                                    |  |  |  |  |  |  |

 

16

----

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

 

17

----

 
|   | **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 |   |
|        |                                    |  |  |  |  |  |  |

 

18

----

 
|   | **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 |   |
|        |                                    |        |  |  |  |  |  |

 

19

----

 
|   | **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 |   |
|        |                                    |        |  |  |  |  |  |

 

20

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|   | **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 |   |
|        |                                    |  |  |  |  |  |  |

 

21

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|   | **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 |   |
|   |                                  |   |
|   |                                  |   |
|   | **USRP (CAROLINA), LTD.**             |
|   |                                  |   |
|   | By:                                   | Restaurant  Acquisition Corp. |
|   |                                  |   |
|   | By:                                   |   | /s/ Stacy M. Riffe |   |
|   | Name:                                 |   | Stacy M. Riffe |   |
|   | Title:                                |   | Chief Financial Officer |   |
|        |                                       |  |  |  |  |  |  |

 

22

----

 
|   | **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 |   |
|   |                                             |   |
|   | **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 |   |
|        |                                                  |  |  |  |  |  |  |

 

23

----

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

 

[remainder of page left intentionally blank –additional signature page to follow]

 

24

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**AGENT/ISSUING LENDER/LENDER/COLLATERALAGENT:**

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

 

25

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**EXHIBIT A**

**TO FOURTHAMENDMENT**

 

**Schedule 1.1(a)**

 

**Revolving Commitments**

 

 
| **Lender**                |   | **Revolving  Committed Amount** |       | **Revolving  Commitment Percentage** |   |
|---------------------------|--------|---------------------------------|------------|--------------------------------------|--------|
| 1.  Bank of America, N.A. |   | $                               | 30,000,000 |                                 | 100.00 | % |
| Totals:                   |   | $                               | 30,000,000 |                                 | 100.00 | % |

 

26

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**EXHIBIT B**

**TO FOURTHAMENDMENT**

 

**Exhibit 2.1(b)(i)**

 

**FORM OF NOTICE OF BORROWING**

 

CharleneE. Wright-Jones

AssistantVice President

Bankof America, N.A.

231South LaSalle Street

Mailcode:  IL1-231-10-30

Chicago,IL 60697

Phone:  312-828-4160

Fax:  312-828-3950

E-mail:  charlene.wright-jones@bankofamerica.com

 

Ladies and Gentlemen:

 

The undersigned, U.S. RESTAURANT  PROPERTIES OPERATING,L.P., as the Principal Borrower thereunder (the “Borrower”), refers tothe Credit Agreement dated as of May 31, 2002 (as amended, modified, restatedor supplemented from time to time, the “Credit Agreement”), among theBorrower, the Guarantors, the Lenders and Bank of America, N.A., as Agent.  Capitalized terms used herein and nototherwise defined herein shall have the meanings assigned to such terms in theCredit Agreement.  The Borrower herebygives notice pursuant to Section 2.1 of the Credit Agreement that itrequests a Revolving Loan advance under the Credit Agreement, and in connectiontherewith sets forth below the terms on which such Loan advance is requested tobe made:

 
| [(A)   |   | Date  of Borrowing (which is a Business Day)                                                                                                                                                                              |                                          | ]*     |
|--------|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-----------------------------------------------|--------|
|   |   |                                                                                                                                                                                                                      |                                          |   |
| [(B)   |   | Principal  Amount of Borrowing                                                                                                                                                                                            |                                          | ]*     |
|   |   |                                                                                                                                                                                                                      |                                          |   |
| (C)    |   | Interest  rate basis                                                                                                                                                                                                      |                                          |   |
|   |   |                                                                                                                                                                                                                      |                                          |   |
| (D)    |   | Interest  Period and the last day thereof                                                                                                                                                                                 |                                          |   |
|   |   |                                                                                                                                                                                                                      |                                          |   |
| (E)    |   | Purpose  of borrowing (check one):                                                                                                                                                                                        |                                          |   |
|   |   |                                                                                                                                                                                                                      |                                          |   |
|   |   |                                                                                                                                                                                                                      | working  capital other than repayment of 1998 |   |   |
|   |   |                                                                                                                                                                                                                      | Senior  Note Obligations                      |   |   |
|   |   |                                                                                                                                                                                                                      |                                          |   |
|   |   |                                                                                                                                                                                                                      | repayment  of 1998 Senior Note Obligations    |   |   |
|   |   |                                                                                                                                                                                                                      |                                          |   |
| (F)    |   | Current aggregate  amount of Total Outstandings allocable to Loan proceeds drawn and Letters of  Credit issued for purposes other than the repayment of the 1998 Senior Note  Obligations (including requested  advance): |                                          | $      |   |
|   |   |                                                                                                                                                                                                                      |                                          |   |
| (G)    |   | Current aggregate  amount of Total Outstandings allocable to Loan proceeds drawn and Letters of  Credit issued for the purpose of   repaying the 1998 Senior Note Obligations (including requested advance):         |                                          | $      |   |
|        |        |                                                                                                                                                                                                                           |                                               |        |  |  |  |

 

27

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Inaccordance with the requirements of Section 5.2, the Borrower herebyreaffirms the representations and warranties set forth in the Credit Agreementas provided in clause (b) of such Section, and confirms that the mattersreferenced in clauses (c), (d) and (e) of such Section, are true andcorrect.  The Borrower hereby covenantsand agrees to use the proceeds of the borrowing requested above solely forthose purposes expressly permitted pursuant to Sections 6.15 and 7.9 of theCredit Agreement.

 
|   | U.S.   RESTAURANT  PROPERTIES  OPERATING, L.P., |   |
|--------|-----------------------------------------------------------|--------|
|   | as Principal Borrower                                     |   |
|   |                                                      |   |   |   |
|   | By:                                                       |   | /s/ Stacy M. Riffe |   |
|   | Name:                                                     |   | Stacy M. Riffe |   |
|   | Title:                                                    |   | Chief Financial Officer |   |
|        |                                                           |        |  |  |  |  |

 

28

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