**Exhibit 10.2**

 

U.S. RestaurantProperties, Inc.

12240 Inwood Rd.,Suite 300

Dallas, Texas75244

 

 

September 25, 2002

 

Mr. Russell Ruhnke,Principal

Bank of America

Portfolio Management;Real Estate/Lodging

NCI-007-15-08

100 North Tryon Street,16th Floor

Charlotte, North Carolina28255-0001

 

Re:                                Revisionto the terms of that certain conditional waiver letter dated as of July 1, 2002(the “Conditional Waiver Letter”).

 

Dear Russ:

 

Referenceis hereby made to the Conditional Waiver Letter and that certain $35,000,000Credit Agreement (the “Credit Agreement”) dated as of May 31, 2002 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 “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 therein), theLenders (as defined therein), **BANK OF AMERICA, N.A.**, as Agent for theLenders (in such capacity, the “Agent”) and **BANC OF AMERICA SECURITIES LLC**,as Sole Lead Arranger and Sole Book Manager (in such capacity “BAS”).  Capitalized terms used herein and nototherwise defined shall have the meanings set forth in the Credit Agreement or,if not defined therein, then in the Conditional Waiver Letter.

 

USRPOperating hereby requests that the Agent continue to provide the waiver andamendment requested by the Conditional Waiver Letter on the terms andconditions set forth therein, with the certain changes in the calculationformulas for the Extension Fees which may become due and owing thereunder.  USRP Operating therefore requests thatclauses (a) through (d) of the Conditional Waiver Letter setting forth theformulas for calculating the Extension Fees be deemed deleted and replaced withthe following:

 

“(a)                            forthe period including calendar days one (1) through fifteen (15) following thefinal day of the Initial Waiver Period, the amount equal to: (i) (A) theaggregated principal amount of the CD Notes held by the Borrower, less$6,500,000; divided by (B) $20,000,000; multiplied by (ii)$15,000;

 

(b)                                 inaddition to the Extension Fees paid pursuant to clause (a), for the periodincluding calendar days sixteen (16) through thirty (30) following the finalday of the Initial Waiver Period, the amount equal to: (i) (A) the aggregatedprincipal amount of the CD Notes held by the Borrower, less $6,500,000; dividedby (B) $20,000,000; multiplied by (ii) $20,000;

 

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Request for Revision to Terms and Conditions of Conditioned Waiver

September 25, 2002

 

(c)                                  inaddition to the Extension Fees paid pursuant to clauses (a) and (b), for theperiod including calendar days thirty-one (31) through sixty (60) following thefinal day of the Initial Waiver Period, $45,000; and

 

(d)                                 inaddition to the Extension Fees paid pursuant to clauses (a), (b) and (c), forthe period including calendar days sixty-one (61) through ninety (90) followingthe final day of the Initial Waiver Period, $60,000.”

 

In addition, to theextent this letter is consented to by the Agent, the following language shallbe added to the Conditional Waiver Letter immediately following clause (d)referenced above:

 

“Extension Fees for theperiods referenced in clauses (a) through (d) above shall accrue as of thefirst (1st) day of each such period (regardless of any reduction inthe principal amount of CD Notes held by the Borrower after such day) and shallbe due and payable at any time thereafter on demand by the Agent (for thebenefit of the Lenders); provided, however, that for purposes of clauses (a)and (b) above, to the extent the principal amount of the CD Notes held by theBorrower for any reason increases during such period, the Borrower agrees topay to the Agent on demand, in addition to the amount owed as of the first dayof such period, an amount equal to (a) any greater amount which would becalculated pursuant to the applicable clause at any time during the applicableperiod, less (b) the amount previously paid by Borrower with respect tosuch period.  The foregoing provisionshall not be construed to permit the Borrower to increase the amount of CDNotes held by it in contravention of the terms of this letter and the CreditAgreement.”

 

TheCredit Parties hereby restate their acknowledgment and agreement that (a) theConditioned Waiver shall be effective only to the extent that the CreditParties shall be deemed to be in compliance with Sections 6.19 and 8.6 of theCredit Agreement despite the Defaults or Events of Default which wouldotherwise arise as a result of USRP Operating’s purchase of the CD Notes and tothe extent such Defaults or Events of Default would be caused solely by theInvestment by USRP Operating in the CD Notes; (b) the Conditioned Waiver shallnot be effective as to any other Defaults or Events of Default (whether or notarising as an indirect result of the purchase of the CD Notes) that may ariseduring the Waiver Period, including, without limitation, Defaults or Events ofDefault resulting from financial covenant violations under Section 7.11 of theCredit Agreement or Defaults or Events of Default under Sections 6.19 or 8.6 ofthe Credit Agreement which do not relate to the purchase of the CD Notes; and(c) no terms or conditions of the Credit Agreement or any of the other CreditDocuments shall be modified by the terms hereof except to the extent expresslyset forth herein and no other amendments or waivers are being sought herebyfrom the Agent with respect to any other matters.  In addition, the Credit Parties hereby agree to indemnify, defendand hold harmless the Agent and its respective directors, officers, agents,employees and counsel from and against any and all losses, claims, damages,liabilities, deficiencies, judgments or expenses incurred, resulting from orarising in connection with the purchase of the CD Notes, the Conditioned Waiveror this letter and agree that all fees, expenses and costs incurred by theAgent in reviewing, negotiating, drafting and otherwise preparing this lettershall be paid by us upon demand as fees, costs and expenses incurred inconnection with the Credit Agreement.  Finally, the Credit Parties representand warrant that they have no claims, counterclaims, offsets, or defenses toany of the Credit Documents, or to the performance of their respectiveobligations thereunder.  Inconsideration of the Agent’s willingness to revise the terms of the ExtensionFees as set forth herein, each of the Credit Parties hereby releases the Agentand its officers, employees, representatives, counsel, trustees and directors,from any and all actions, causes of action, claims, demands, damages andliabilities

 

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of whatever kind ornature, in law or in equity, now known or unknown, suspected or unsuspected tothe extent that any of the foregoing arises from any action or failure to acton or prior to the date hereof.

 

If you need anyadditional information in order to evaluate this request, please contactme.  We ask that you countersign thisletter as evidence of the Agent’s consent to the revisions to the Extension Feecalculation formulas as set forth herein and return this letter to us by fax assoon as possible.

 

Weappreciate your cooperation and understanding in this matter.  If you have any questions, please do nothesitate to contact me.

 
|   | Very truly yours,                                                                         |
|--------|-------------------------------------------------------------------------------------------|
|   |                                                                                      |   |
|   |                                                                                      |   |
|   | U.S. Restaurant Properties Operating, L.P.,  as Principal Borrower for the Credit Parties |
|   |                                                                                      |
|   |                                                                                      |
|   | By:                                                                                  | USRP Managing, Inc. |
|   |                                                                                      |
|   |                                                                                      |
|   | By:                                                                                       |  /s/ Robert J. Stetson |   |
|   | Name:  Robert J. Stetson                                                             |
|   | Title:  President                                                                    |
|        |                                                                                           |  |  |  |

 

 

Acknowledged andconsented to

this 25th dayof September, 2002

 

 
| By:    | /s/ Russell Ruhnke                                            |   |
|--------|---------------------------------------------------------------|--------|
|   | Russell Ruhnke, on behalf of  Bank of America, N.A., as Agent |

 

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