**Exhibit 10.6**

 

 

INTERCREDITOR AGREEMENT

 

Dated as of November 4, 2003

 

by and among

 

BANK OF AMERICA, N.A., as Collateral Agent

 

and

 

U.S.  RESTAURANT PROPERTIESOPERATING L.P. (“USRP Operating”),USRP FUNDING 2002-A, L.P. (the “General SPE”),USRP (S&C), LLC, a Texas limited liability company (“S&C”),USRP (JV1), LLC, a Texas limited liability company (“JV1”),USRP/HCI PARTNERSHIP 1, L.P., a Texas limited partnership (“HCI”),USRP HOLDING CORP., a Texas corporation (“USRP Holding),as, collectively, the “Borrower,”

USRP MANAGING, INC. (the “General Partner”),the General Partner of the Borrower, as a Guarantor,U.S.  RESTAURANT PROPERTIES, INC. (the“USRP REIT”),as a Guarantor, andTHE SUBSIDIARIES OF THE BORROWER, GENERAL PARTNER AND THE USRP REITFROM TIME TO TIME PARTY HERETO,as guarantors (the “Guarantors”; collectively, with  the Borrower, the “Credit Parties”),

and

 

CERTAIN OF THE CREDITORSOF THE CREDIT PARTIES

 

 

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**Table ofContents**

 
| **SECTION 1** | **DEFINITIONS**                                                    |                                                         |
|--------------------|--------------------------------------------------------------------|--------------------------------------------------------------|
|               |                                                               |                                                         |
| **SECTION 2** | **THE COLLATERAL AGENT**                                           |                                                         |
|               | Section 2.1                                                   | Appointment and  Authorization.                              |   |
|               | Section 2.2                                                   | Duties.                                                      |   |
|               | Section 2.3                                                   | Agents and  Attorneys-in-fact.                               |   |
|               | Section 2.4                                                   | Limitation on Liability.                                     |   |
|               | Section 2.5                                                   | Reliance.                                                    |   |
|               | Section 2.6                                                   | Notice of Default.                                           |   |
|               | Section 2.7                                                   | No Representations.                                          |   |
|               | Section 2.8                                                   | Indemnification.                                             |   |
|               | Section 2.9                                                   | Resignation  and Removal of Collateral Agent.                |   |
|               | Section 2.10                                                  | Collateral  Agent under Security Instruments.                |   |
|               |                                                               |                                                         |   |
| **SECTION 3** | **ENFORCEMENT, PRIORITY  AND DISTRIBUTION OF COLLATERAL PROCEEDS** |                                                         |
|               | Section 3.1                                                   | Enforcement  With Respect to Collateral.                     |   |
|               | Section 3.2                                                   | Cooperation of Secured  Parties.                             |   |
|               | Section 3.3                                                   | Priority of Interests.                                       |   |
|               | Section 3.4                                                   | Distributions.                                               |   |
|               | Section 3.5                                                   | Waivers of Rights.                                           |   |
|               | Section 3.6                                                   | Additional Collateral.                                       |   |
|               | Section 3.7                                                   | Pari Passu Nature of  Obligations.                           |   |
|               | Section 3.8                                                   | Payments.                                                    |   |
|               |                                                               |                                                         |   |
| **SECTION 4** | **REPRESENTATIONS AND  WARRANTIES**                                |                                                         |
|               | Section 4.1                                                   | Representation of  the Revolver Agent.                       |   |
|               | Section 4.2                                                   | Representation  of the Term Loan Agent.                      |   |
|               | Section 4.3                                                   | Representations of  All Signatories.                         |   |
|               |                                                               |                                                         |   |
| **SECTION 5** | **AGREEMENTS AMONG THE  SECURED PARTIES**                          |                                                         |
|               | Section 5.1                                                   | Independent  Actions by Secured Parties.                     |   |
|               | Section 5.2                                                   | Relation of Secured  Parties.                                |   |
|               |                                                               |                                                         |   |
| **SECTION 6** | **MISCELLANEOUS**                                                  |                                                         |
|               | Section 6.1                                                   | Entire  Agreement and Consistent Provisions; Closing Date.   |   |
|               | Section 6.2                                                   | Notices.                                                     |   |
|               | Section 6.3                                                   | Successors and Assigns.                                      |   |
|               | Section 6.4                                                   | Consents, Amendment,  Waivers.                               |   |
|               | Section 6.5                                                   | Governing Law.                                               |   |
|               | Section 6.6                                                   | Counterparts.                                                |   |
|               | Section 6.7                                                   | Sale of Interest.                                            |   |
|               | Section 6.8                                                   | Severability;  Repurchase in the Event of Avoidance Actions. |   |
|               | Section 6.9                                                   | Terms of Agreement.                                          |   |
|               | Section 6.10                                                  | Delivery Payments.                                           |   |
|               | Section 6.11                                                  | Reimbursement/Indemnification.                               |   |
|                    |                                                                    |                                                              |  |  |

 

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**Schedules**

** **

Schedule A – Form of ICA Joinder Agreement

 

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**INTERCREDITORAGREEMENT**

 

ThisINTERCREDITOR AGREEMENT, dated as of November 4, 2003 (this “Agreement”)is by and among:

 

a.                                       Eachof the “Lenders” (such “Lenders” being referred to herein as the “RevolvingLenders”) under that certain $50 million revolving Credit Agreement datedas of the date hereof among U.S. RESTAURANT PROPERTIES OPERATING L.P., a Delaware limited partnership (“USRPOperating” or the “Principal Borrower”), USRP FUNDING 2002-A, L.P.,a Texas limited partnership (the “General SPE”); USRP (S&C), LLC, aTexas limited liability company (“S&C”), USRP (JV1), LLC, a Texaslimited liability company (“JV1”), USRP/HCI PARTNERSHIP 1, L.P., a Texaslimited partnership (“HCI”), USRP HOLDING CORP., a Texas corporation (“USRPHolding”; and together with the Principal Borrower, the General SPE,S&C, JV1 and HCI, the “Borrower”), USRP MANAGING, INC., a Delawarecorporation and the general partner of USRP Operating, as a Guarantor (the “GeneralPartner”), U.S. RESTAURANT PROPERTIES, INC., a Maryland corporation, as aGuarantor (“USRP REIT”), the Subsidiary Guarantors (as defined therein;collectively with the General Partner and USRP REIT, the “Guarantors”),the Lenders (as defined therein), BANK OF AMERICA, N.A., as Agent for theLenders (in such capacity, the “Revolver Agent”; collectively with theRevolving Lenders, the “Revolver Creditors”) and as issuing lender andBANC OF AMERICA SECURITIES LLC, as Sole Lead Arranger and SoleBook Manager (as the same may be amended, restated, supplemented orotherwise modified from time to time, the “Revolving Credit Agreement”);

 

b.                                      Eachof the “Lenders” (such “Lenders” being referred to herein as the “Term LoanLenders”) under that certain $35 million Term Loan Credit Agreement datedas of the date hereof among the Borrower, the Guarantors, the Lenders (asdefined therein), BANK OF AMERICA, N.A., as Agent for the Lenders (in suchcapacity, the “Term Loan Agent”; collectively, with the Term LoanLenders, the “Term Loan Creditors”) and BANC OF AMERICA SECURITIES LLC,as Sole Lead Arranger and Sole Book Manager (as the same may be amended,restated, supplemented or otherwise modified from time to time, the “TermLoan Agreement”);

 

c.                                       Bankof America, N.A., a national banking association (“Bank of America”), asRevolving Agent, as Term Loan Agent and as collateral agent (in such capacity,and together with its successors and permitted assigns, the “CollateralAgent”) for the Revolver Creditors and the Term Loan Creditors(collectively, the “Secured Parties”); and

 

d.                                      TheBorrower and each of the Guarantors (collectively, the “Credit Parties”).

 

Allcapitalized terms used in this Agreement shall have the meanings assignedthereto in Section 1.

 

**R E C IT A L S:**

 

A.                                   Pursuantto the Revolving Credit Agreement, the Revolving Lenders have made or havecommitted to make certain loans and advances to the Borrower (the “RevolvingLoans”) and have issued or have committed to issue letters of credit forthe benefit of the Borrower (the “Revolving LCs”; collectively with theRevolving Loans, the “Revolving Advances”).  The Guarantors have guaranteed repayment of the RevolvingAdvances and all other amounts due and owing by the Borrower under theRevolving Credit Agreement and the “Credit Documents” as defined therein (the “RevolvingCredit Documents”).

 

B.                                     Pursuantto the Term Loan Agreement, the Term Loan Lenders have made or have committedto make certain term loans and advances to the Borrower (the “Term Loans”).The Guarantors have guaranteed repayment of the Term Loans and all other amountsdue and owing by the Borrower under the Term Loan Agreement and the “CreditDocuments” as defined therein (the “Term Loan Documents”; collectively,with the Revolving Credit Documents, the “Subject Documents”).

 

C.                                     TheRevolving Advances and the other amounts due and owing by Borrower under theRevolving Credit Documents (collectively, the “Revolving Loan Obligations”)and the Term Loans and the other amounts due and owing by Borrower under theTerm Loan Documents (collectively, the “Term Loan Obligations”) are eachsecured by (i) that certain Pledge andSecurity Agreement entered into by USRP Holding as of the date hereof in

 

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favorof the Collateral Agent and for the benefit of the Secured Parties; (ii) thatcertain Pledge and Security Agreement entered into by USRP Operating as of thedate hereof in favor of the Collateral Agent and for the benefit of the SecuredParties; (iii) each of the “Security Documents” as defined in the RevolvingCredit Agreement; and (iv) each of the “Security Documents” as defined in theTerm Loan Agreement (collectively, the “Security Instruments”).

 

D.                                    ThisAgreement is for the purpose of governing, inter alia, the allocations ofDistributions (as defined herein) among the Revolver Creditors and the TermLoan Creditors.

 

NOW,THEREFORE, in consideration of the premises and other good and valuableconsideration, the sufficiency and receipt of which are hereby acknowledged,the parties hereto hereby agree as follows:

 

# **SECTION 1**

 

# **DEFINITIONS**

# ** **

Capitalizedterms used herein and not otherwise defined shall have the meanings given tosuch terms in the Revolving Credit Agreement. The following terms shall have the meanings assigned to them below inthis Section 1 or in the provisions of this Agreement referred to below:

 

“AdditionalLien” shall have the meaning assigned thereto in Section 3.6 below.

 

“Affiliate”means, with respect to any Person, any other Person (i) directly orindirectly controlling or controlled by or under direct or indirect commoncontrol with such Person or (ii) directly or indirectly owning or holdingfive percent (5%) or more of the Capital Stock in such Person.  For purposes of this definition, “control”when used with respect to any Person means the power to direct the managementand policies of such Person, directly or indirectly, whether through theownership of voting securities, by contract or otherwise; and the terms“controlling” and “controlled” have meanings correlative to the foregoing.

 

“AgentParties” or “Agent Party” shall have the meaning assigned thereto inSection 2.4 below.

 

“Agreement”shall have the meaning assigned thereto in the introductory paragraph hereof.

 

“Bankof America” shall have the meaning assigned thereto in clause (c) of theintroductory paragraph hereof.

 

“Borrower”shall have the meaning assigned thereto in clause (a) of the introductoryparagraph hereof.

 

“BusinessDay” shall mean any day which is not a Saturday, Sunday or a day on whichcommercial banks are authorized or obligated by law, executive order orgovernmental decree to be closed in Charlotte, North Carolina or Chicago,Illinois.

 

“ClosingDate” shall mean the date hereof.

 

“Collateral”shall mean all assets (including, without limitation, real property, personalproperty and fixtures) of the Borrower and the Subsidiary Guarantors, bothtangible and intangible, subject to the Liens established by the SecurityInstruments.

 

“CollateralAgent” shall have the meaning assigned thereto in clause (c) of theintroductory paragraph hereof.

 

 “Collateral Proceeds” shall mean andinclude the proceeds of any sale or disposition of any of the Collateral inconnection with (i) the enforcement of the Liens granted pursuant to theSecurity Instruments or (ii) any other exercise of the rights of the CollateralAgent on behalf of the Secured Parties pursuant to the Security Instruments andthis Agreement.

 

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“CreditParties” shall have the meaning assigned thereto in clause (d) of theintroductory paragraph hereof.

 

“DefaultNotice” shall have the meaning assigned thereto in Section 3.2(a)below.

 

“DisallowedObligation” shall have the meaning ascribed thereto in Section 6.8(a)below.

 

“Distribution”shall mean any and all payments or distributions (direct or indirect) of anykind or character (whether such payments or distributions are attributable toCollateral or to assets or property other than Collateral and whether in theform of cash or any other property) in respect of any of the SecuredObligations, including, without limitation:

 

(i)                                     anyvoluntary payment or distribution with respect to the Secured Obligations(including any prepayment (whether optional or otherwise) or any purchase ofany of the Secured Obligations) by any Credit Party;

 

(ii)                                  anysetoff or assertion of a banker’s lien or similar right (including, withoutlimitation, any secured lien arising therefrom under the Bankruptcy Code);

 

(iii)                               any distribution ofproceeds from any exercise of rights or remedies by any Secured Party(including, without limitation, any Collateral Proceeds);

 

(iv)                              allpayments and other distributions (including, without limitation, payments madethrough setoff of deposit balances or otherwise or payments or recoveries fromany security interest granted to any Secured Party) made pursuant to the termsof any Security Instrument or the exercise of any rights (statutory orotherwise) by Revolver Agent, Term Loan Agent or any Agent Party;

 

(v)                                 anycash collateralization of any obligation in respect of any Letter of Credit orother Secured Obligation; and

 

(vi)                              anypayment or other distribution from the estate of any Credit Party in connectionwith any Bankruptcy Event.

 

“Enforcement”shall mean taking any action seeking remedies with respect to the Collateral orpursuing enforcement (judicial or otherwise) with respect to any of the Liensgranted under the Security Instruments. For the avoidance of doubt, “Enforcement” shall not include (i)filing any involuntary petition of bankruptcy or similar action with respect toany Credit Party or (ii) any action permitted by Section 5.1.

 

“EnforcementNotice” shall mean any written notice delivered in accordance withSection 2.2(a) of this Agreement stating that an Event of Default hasoccurred and identifying the document(s) under which such Event of Default hasoccurred, and clearly identified as any Enforcement Notice as required bySection 2.6 below.

 

“GeneralPartner” shall have the meaning assigned thereto in clause (a) of theintroductory paragraph hereof.

 

“GeneralSPE” shall have the meaning assigned thereto in clause (a) of theintroductory paragraph hereof.

 

“Guarantors”shall have the meaning assigned thereto in clause (a) of the introductoryparagraph hereof.

 

“HCI”shall have the meaning assigned thereto in clause (a) of the introductory paragraphhereof.

 

“ICAJoinder Agreement” shall mean an ICA Joinder Agreement substantially in theform of Exhibit C, as the same may be executed and delivered by a transferee orassignee of a Secured Party hereto.

 

“IndemnifiedLiabilities” shall have the meaning assigned thereto in Section 2.8below.

 

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“IndemnityShare” shall have the meaning assigned thereto in Section 2.8 below.

 

“IntercreditorAgreement” shall mean this Agreement.

 

“InterestPayables” shall have the meaning assigned thereto in Section 3.4(b)below.

 

“JV1”shall have the meaning assigned thereto in clause (a) of the introductoryparagraph hereof.

 

“Non-indemnifyingSecured Party” shall have the meaning assigned thereto in Section 2.8below.

 

“Non-PayingSecured Party” shall have the meaning specified in Section 3.4(c)below.

 

“Non-ReturningSecured Party” shall have the meaning specified in Section 3.4(d)below.

 

“OtherPayables” shall have the meaning assigned thereto in Section 3.4(b) below.

 

“PrincipalBorrower” shall have the meaning assigned thereto in clause (a) of theintroductory paragraph hereof.

 

“PrincipalPayables” shall have the meaning assigned thereto in Section 3.4(b)below.

 

“RequiredRevolving Lenders” shall have the meaning given to such term in theRevolving Credit Agreement.

 

“RequiredSecured Parties” shall mean the “Required Lenders” as such term is definedin the Revolving Credit Agreement as of the date hereof.

 

“RequiredTerm Loan Lenders” shall have the meaning given to such term in the TermLoan Agreement.

 

“ReturnedAmount” shall have the meaning assigned thereto in Section 3.4(d)below.

 

“ReturnedAmount Share” shall have the meaning assigned thereto inSection 3.4(d) below.

 

“RevolverAgent” shall have the meaning assigned thereto in clause (a) of theintroductory paragraph hereof.

 

“RevolvingAdvances” shall have the meaning assigned thereto in the recitals hereof.

 

“RevolvingCredit Agreement” shall have the meaning assigned thereto in clause (a) ofthe introductory paragraph hereof.

 

“RevolvingCredit Documents” shall have the meaning assigned thereto in the recitalshereof.

 

“RevolvingCreditors” shall have the meaning assigned thereto in clause (a) of theintroductory paragraph hereof.

 

“RevolvingLCs” shall have the meaning assigned thereto in the recitals hereof.

 

“RevolvingLenders” shall have the meaning assigned thereto in clause (a) of theintroductory paragraph hereof.

 

“RevolvingLoan Obligations” shall have the meaning assigned thereto in the recitalshereof.

 

“RevolvingLoans” shall have the meaning assigned thereto in the recitals hereof.

 

“S&C”shall have the meaning assigned thereto in clause (a) of the introductoryparagraph hereof.

 

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“SecuredObligations” means a collective reference to the Revolving Loan Obligationsand the Term Loan Obligations.

 

“SecuredParties” shall have the meaning assigned thereto in clause (c) of theintroductory paragraph hereof.

 

“SecurityInstruments” shall have the meaning assigned thereto in the recitalshereof.

 

“SecurityTermination Date” shall mean the date on which all of the SecuredObligations are fully and indefeasibly satisfied and paid in full and each ofthe Security Instruments has been terminated or released.

 

“SubjectDocuments” shall have the meaning assigned thereto in the recitals hereof.

 

“SubjectEvent of Default” shall mean either (a) an uncured “Event of Default” assuch term is defined in the Revolving Credit Agreement or (b) an uncured “Eventof Default” as such term is defined in the Term Loan Agreement.

 

“TermLoan Agent” shall have the meaning assigned thereto in clause (b) of theintroductory paragraph hereof.

 

“TermLoan Agreement” shall have the meaning assigned thereto in clause (b) ofthe introductory paragraph hereof.

 

“TermLoan Creditors” shall have the meaning assigned thereto in clause (b) ofthe introductory paragraph hereof.

 

“TermLoan Documents” shall have the meaning assigned thereto in the recitalshereof.

 

“TermLoan Lenders” shall have the meaning assigned thereto in clause (b) of theintroductory paragraph hereof.

 

“TermLoans” shall have the meaning assigned thereto in the recitals hereof.

 

“USRPHolding” shall have the meaning assigned thereto in clause (a) of theintroductory paragraph hereof.

 

“USRPOperating” shall have the meaning assigned thereto in clause (a) of theintroductory paragraph hereof.

 

“USRPREIT” shall have the meaning assigned thereto in clause (a) of theintroductory paragraph hereof.

 

# **SECTION 2**

# ** **

# **THE COLLATERAL AGENT**

# ** **

## **Section 2.1**                                   Appointment and Authorization.

## ** **

Subjectto the provisions of Section 2.9 hereof, Bank of America is herebyirrevocably designated and appointed as the Collateral Agent for the benefit ofthe Secured Parties under the Security Instruments, and is hereby irrevocablyauthorized to take such action as is expressly provided for under theprovisions of this Agreement and to exercise such powers as are expresslyconferred upon or delegated to the Collateral Agent by the terms of any of the SecurityInstruments and this Agreement, together with such other powers as arereasonably incidental thereto.  TheCollateral Agent shall not have any duties or responsibilities, except thoseexpressly set forth herein or therein, or any fiduciary relationship with anyof the Secured Parties, and no implied covenants, functions, responsibilities,

 

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duties, obligations orliabilities shall be read into the Security Instruments or this Agreement orotherwise be deemed to exist for, be undertaken by, or apply to or against theCollateral Agent.  The Collateral Agentis hereby expressly authorized in such capacity on behalf of the SecuredParties, without hereby limiting the foregoing, and subject to, and in accordancewith, the terms and conditions of this Agreement:

 

(i)                                     toimplement the sharing of Distributions as contemplated by this Agreement and toreceive on behalf of each of the Secured Parties any payment of monies paidthereto in accordance with the Security Instruments and the other SubjectDocuments, and to distribute to each Secured Party its respective share of allpayments (including the Distributions) so received in accordance with the termsof this Agreement;

 

(ii)                                  toreceive all documents and items to be furnished under the Security Instruments;

 

(iii)                               to maintain physicalpossession of any of the Collateral as contemplated by any of the SecurityInstruments;

 

(iv)                              toact on behalf of each Secured Party in and under the Security Instruments and thisAgreement;

 

(v)                                 tothe extent permitted by this Agreement and the Security Instruments, toexercise for its own benefit and the benefit of each Secured Party all remediesof the Secured Parties under any of the Security Instruments as directed inwriting by the Required Secured Parties, subject, however to the right to takeaction described in Section 2.2(c) so long as consistent with the terms ofthe Security Instruments;

 

(vi)                              totake such other actions, other than as specified in Section 2.2(c) hereof,as may be requested in writing by the Required Secured Parties or as arereasonably incidental to any powers granted to the Collateral Agent hereunderand not in conflict with applicable law or regulation or any Subject Document.

 

## **Section 2.2**                                   Duties.

## ** **

(a)                                  Uponthe Collateral Agent’s receipt of an Enforcement Notice from the RequiredSecured Parties giving notice of a Subject Event of Default and directing theCollateral Agent to take action under any Security Instrument for the benefitof the Secured Parties, the Collateral Agent shall undertake to proceed asdirected as soon as possible and in no event later than ten (10) Business Daysafter receipt of such notice.  AllEnforcement actions undertaken by the Collateral Agent, whether or not directedby the Required Secured Parties, shall be in accordance with the terms ofapplicable law and the Required Secured Parties shall act in accordance withthe applicable Subject Documents in issuing any such notices.  The Collateral Agent shall deliver a copy ofany such written notice from the Required Secured Parties to each Secured Partynot a signatory to such notice promptly upon its receipt by the CollateralAgent.  The Collateral Agent shall beentitled to rely and act upon advice of counsel (including, without limitation,counsel to any Secured Party), independent accountants and other expertsselected by the Collateral Agent with reasonable care concerning all matterspertaining to any duties hereunder.

 

(b)                                 TheCollateral Agent shall have no obligation to, nor liability for failure to,independently verify the existence or occurrence of any events set forth in anyEnforcement Notice it shall receive pursuant to Section 2.2(a) hereof andthe Collateral Agent may rely thereon as to each matter stated therein as morefully set forth in Section 2.5 hereof and shall be indemnified by eachSecured Party with respect to such reliance in the manner and pursuant to theterms of Section 2.8 hereof.

 

(c)                                  Exceptpursuant to delivery of written instructions by the Required Secured Parties tothe Collateral Agent or as is necessary to prevent the waste, diminution,impairment or loss of Collateral which could not reasonably be taken throughnotice or instruction by the Required Secured Parties, the Collateral Agentshall not, without prior written consent of the Required Secured Parties,release or substitute or take any action or exercise any right or remedy withrespect to any Collateral.

 

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## **Section 2.3**                                   Agents and Attorneys-in-fact.

## ** **

TheCollateral Agent may execute any of its duties under the Security Instrumentsor this Agreement by or through its agents or attorneys-in-fact.

 

## **Section 2.4**                                   Limitation on Liability.

## ** **

Neitherthe Collateral Agent nor any of its officers, directors, employees, affiliates,agents or attorneys-in-fact (collectively, the “Agent Parties”) shall beliable to the Secured Parties for any action lawfully taken or omitted to betaken by it or them under or in connection with the Security Instruments or thisAgreement except for its or their own gross negligence or willful misconduct,including without limitation any liability with respect to (i) the sharing ofthe Distributions as contemplated by this Agreement, (ii) the applicationpursuant to the terms of this Agreement of Collateral Proceeds realized fromtime to time by the Collateral Agent on behalf of the Secured Parties, (iii)the application pursuant to the terms of this Agreement of Distributions, (iv)the exercise of any remedy, including without limitation the sale or sales ofCollateral conducted by the Collateral Agent in accordance with the termshereof and of the Security Instruments pursuant to the express writteninstruction and direction delivered by the Required Secured Parties to the CollateralAgent in connection with any Enforcement Notice and (v) the protection orpreservation of the Collateral in its possession.  No Agent Party shall be responsible in any manner to any of theSecured Parties for any recitals, statements, representations or warrantiesmade by the any Credit Party or any officer thereof contained in any of theSecurity Instruments or any other Subject Document, or in any certificate,report, statement or other document referred to or provided for in or receivedby the Collateral Agent under or in connection with this Agreement, theSecurity Instruments, or the other Subject Documents or for the value,validity, effectiveness, genuineness, enforceability or sufficiency of thisAgreement, the Security Instruments, or any other Subject Document, or for anyfailure of the Borrower, any of its Subsidiaries or any Secured Party (otherthan the Collateral Agent) to perform its obligations thereunder, or for theperfection or priority of any Lien or the existence or state of, or title to,any of the Collateral.  The CollateralAgent shall be under no obligation to any of the Secured Parties to ascertainor to inquire as to the observance or performance of any of the terms,covenants or conditions of the Security Instruments, this Agreement or theother Subject Documents on the part of the Borrower, any of its Subsidiaries orany Secured Party (other than the Collateral Agent) or to inspect theproperties, books or records of the Borrower, any of its Subsidiaries or anySecured Party (other than the Collateral Agent).  The agreements in this Section 2.4 shall survive the paymentof the Secured Obligations and the termination of the Security Instruments,this Agreement and the other Subject Documents.

 

## **Section 2.5**                                   Reliance.

## ** **

TheCollateral Agent shall be entitled to rely, and shall be fully protected inrelying, upon any certification, notice, consent or other communication(including, without limitation, any thereof delivered by telephone ortelefacsimile or e-mail) reasonably believed by it to be genuine and to havebeen signed, sent or made by the proper Person or Persons, and upon advice andstatements of legal counsel (including, without limitation, counsel to anySecured Party), independent accountants and other experts selected by theCollateral Agent with reasonable care. The Collateral Agent shall be fully justified in failing or refusing totake any Enforcement action under the Security Instruments or this Agreementunless it shall first receive the written directive of the Required SecuredParties as provided in this Agreement and it shall first be indemnified to itssatisfaction by such Secured Parties against any and all liability and expensewhich may be incurred by it by reason of taking or continuing to take any suchaction.  The Collateral Agent shall inall cases be fully protected in acting, or in refraining from acting, under theSecurity Instruments or this Agreement in accordance with a request of theRequired Secured Parties, and such request and any action taken or failure toact pursuant thereto shall be binding upon all the Secured Parties and theirsuccessors and assignees.

 

## **Section 2.6**                                   Notice of Default.

## ** **

TheCollateral Agent shall not be deemed to have constructive knowledge or noticeof the occurrence of any Subject Event of Default with respect to which it doesnot have actual knowledge by any of its personnel or officers active in itsservice as Collateral Agent unless it has received an Enforcement Notice thatis clearly identified as such.

 

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## **Section 2.7**                                   No Representations*.*

## ** **

EachSecured Party that is a party hereto acknowledges that neither the CollateralAgent nor any of its affiliates or agents has made any representations orwarranties to it and that no act by the Collateral Agent hereafter taken,including any review of the affairs of the Credit Parties, shall be deemed toconstitute any representation or warranty by the Collateral Agent to anySecured Party.  Each Secured Partyrepresents to the Collateral Agent that it has, independently and withoutreliance upon the Collateral Agent or any other Secured Party, and based onsuch documents and information as it has deemed appropriate, made its ownappraisal of and investigation into the financial condition, creditworthiness,affairs, status and nature of the Credit Parties, and the status, nature andvalue of the Collateral, and made its own decision to enter into this Agreementand the Subject Documents to which it is party.  Each Secured Party also represents that it will, independentlyand without reliance upon the Collateral Agent or any other Secured Party, andbased on such documents and information as it shall deem appropriate at thetime, continue to make its own credit analysis, appraisals and decisions intaking or not taking action under any of the Subject Documents and to make suchinvestigation as it deems necessary to inform itself as to the status andaffairs, financial or otherwise, of the Credit Parties.  Except for notices, reports and otherdocuments expressly required to be furnished to the Secured Parties by theCollateral Agent hereunder or under the Security Instruments, the CollateralAgent shall have no duty or responsibility to provide any Secured Party withany credit or other information concerning the Collateral or the affairs,financial condition or business of the Borrower or its Subsidiaries (other thanwith respect to Distributions pursuant to Section 3.4 hereof) which maycome into the possession of the Collateral Agent.

 

## **Section 2.8**                                   Indemnification.

## ** **

EachSecured Party agrees to, within ten (10) Business Days of a request byCollateral Agent, indemnify for its Indemnity Share (as defined below) eachAgent Party in its capacity as such (to the extent not reimbursed by the Borrowerand without limiting any obligations of the Borrower so to do) from and againstany and all liabilities, obligations, losses, damages, penalties, actions,judgments, suits, costs, expenses or disbursements of any kind or naturewhatsoever which may at any time (including without limitation at any timefollowing the payment of any amounts due under this Agreement or any SubjectDocument) be imposed on, incurred by or asserted against any Agent Party in anyway relating to or arising out of the Security Instruments, this Agreement orthe Subject Documents or any other document contemplated by or referred toherein or therein or the transactions contemplated thereby or hereby or anyaction taken or omitted by the Collateral Agent under or in connection with anyof the foregoing (collectively, the “Indemnified Liabilities”); providedthat, no Secured Party shall be liable for the payment of any portion ofsuch Indemnified Liabilities resulting from an Agent Party’s gross negligenceor willful misconduct.  If any SecuredParty fails to tender payment of its ratable share (determined based upon, atsuch date, the percentage held by such Secured Party of the total outstandingSecured Obligations (such Secured Party’s “Indemnity Share”)) of any ofsuch Indemnified Liabilities (a “Non-indemnifying Secured Party”), thenthe Collateral Agent is hereby expressly granted the right thereafter to, andshall, withhold from any Distributions (including, without limitation,Collateral Proceeds) otherwise payable to such Non-indemnifying Secured Party(or, if applicable, the agent for such Secured Party (whether the RevolverAgent or Term Loan Agent) which would otherwise receive payment on behalf ofsuch Secured Party) an amount equal to its Indemnity Share remaining unpaid atsuch time of receipt of such Distributions, plus interest on such IndemnityShare (calculated at the Federal Funds Rate for each day following the date onwhich such payment was due pursuant to the terms of this Section 2.8) andapply such amount withheld in satisfaction of such Indemnity Share.  The agreements in this Section 2.8shall survive the payment of the Secured Obligations and the termination of theSecurity Instruments, the other Subject Documents and this Agreement.  Each of the Secured Parties herebyacknowledges and agrees that to the extent it is deemed to be aNon-indemnifying Secured Party, it shall not be entitled, under any SubjectDocuments to which it is a party, to payment in respect of any amount withheldas an Indemnity Share and that distributions under such Subject Documents shallbe made as if such Indemnity Share (or withheld portion thereof) was alreadypaid to it under the applicable Subject Document(s).

 

## **Section 2.9**                                   Resignation and Removal ofCollateral Agent.

## ** **

(a)                                  Ifthe Collateral Agent shall resign as Collateral Agent under this Agreement,such resignation to be effective upon the earlier of (i) the appointment of asuccessor Collateral Agent and (ii) the date occurring thirty (30) daysfollowing such resignation, then the Required Secured Parties may

 

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appointa successor Collateral Agent for the Secured Parties, which shall be acommercial bank or trust company organized under the laws of the United Statesof America or any state thereof having a combined surplus and capital of notless than $500,000,000, whereupon such successor Collateral Agent shall succeedto the rights, powers and duties of the former Collateral Agent and theobligations of the former Collateral Agent shall be terminated and canceled,without any other or further act or deed on the part of such former CollateralAgent or any of the parties to this Agreement; provided, however,if the Required Secured Parties cannot agree as to a successor Collateral Agentwithin thirty (30) days after notice of such resignation, then (i) theresigning Collateral Agent shall be permitted to appoint a successor CollateralAgent meeting the qualifications set forth above and willing to accept suchrole and the parties hereto agree to execute whatever documents are necessaryto effect such action under this Agreement or any other document executedpursuant to this Agreement; and (ii) if the Collateral Agent does not appointany such successor Collateral Agent, the Secured Parties shall act collectivelyas the Collateral Agent hereunder until such date as a new Collateral Agent isapppointed.

 

(b)                                 TheCollateral Agent may be removed for cause at any time by the vote of theRequired Secured Parties and written notice thereof delivered to the CollateralAgent.  If the Collateral Agent is soremoved, the Required Secured Parties shall appoint a successor CollateralAgent in accordance with Section 2.9(a) hereof.  The Collateral Agent may not be removed by the Required SecuredParties without cause.

 

(c)                                  Afterthe effective date of the resignation or removal of the Collateral Agenthereunder, the provisions of this Section 2 shall inure to its benefit asto any actions taken or omitted to be taken by it while it was Collateral Agentunder the Security Instruments and this Agreement; provided, however,that any liability of such Collateral Agent arising from the performance of itsobligations hereunder prior to such resignation or removal shall survive suchresignation or removal.

 

## **Section 2.10**                            Collateral Agent under SecurityInstruments.

## ** **

TheCollateral Agent hereunder hereby agrees to serve as Collateral Agent under theSecurity Instruments.  Any resignationor removal of the Collateral Agent hereunder and the appointment of a substituteCollateral Agent shall also be effective as a resignation, removal orsubstitution of the Collateral Agent under the Security Instruments.

 

# **SECTION 3**

# ** **

# **ENFORCEMENT, PRIORITY AND DISTRIBUTIONOF COLLATERAL PROCEEDS**

# ** **

## **Section 3.1**                                   Enforcement With Respect to Collateral.

## ** **

(a)                                  Eachof the Required Revolving Lenders and the Required Term Loan Lenders shall havethe right to deliver an Enforcement Notice to the Collateral Agent to theextent a Subject Event of Default shall have occurred under a Subject Documentto which such group is a party or beneficiary. Upon and after the delivery to the Collateral Agent of an EnforcementNotice by either of the Required Revolving Lenders or the Required Term LoanLenders, the Collateral Agent shall, upon and after the delivery to theCollateral Agent of written direction of the Required Secured Parties toundertake Enforcement pursuant to Section 2.2(a) hereof, proceed toprotect and enforce rights or remedies granted under the Security Instrumentsas so directed, either by suit in equity or by action at law, or both, whetherfor the specific performance of any covenant, agreement or other provisioncontained herein or in the Security Instruments, or to enforce any other legalor equitable right or remedy provided therein.

 

(b)                                 AllDistributions received by the Collateral Agent shall be applied in accordancewith Section 3.4(b) below.

 

9

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## **Section 3.2**                                   Cooperation of Secured Parties.

 

EachSecured Party that is a party hereto hereby agrees and covenants with eachother Secured Party (whether or not it is a party hereto) that:

 

(a)                                  promptlyafter having actual knowledge of the occurrence of a Subject Event of Default,each Secured Party will deliver to the Collateral Agent and to each otherSecured Party written notice of such Subject Event of Default (a “Default Notice”)identifying the nature of such Subject Event of Default and specifying theSubject Document under which such Subject Event of Default arose; provided,however, that no Default Notice shall be required to be given to theextent such Subject Event of Default is waived or cured by amendment prior tothe time a Default Notice is delivered and providedfurther, thatthe failure to give such notice shall not impair any rights hereunder or underany of the Security Instruments or the other Subject Documents;

 

(b)                                 itwill from time to time provide such information that is available to it to theCollateral Agent as may be necessary to enable the Collateral Agent to make anycalculation hereunder or otherwise reasonably required and requested for anyother purpose hereof;

 

(c)                                  itwill from time to time consult with the Collateral Agent and the other SecuredParties in good faith regarding the Enforcement of its rights with a view torecovering amounts due under any of the Subject Documents; and

 

(d)                                 itwill give the Collateral Agent and each other Secured Party prompt writtennotice of any acceleration of maturity or suspension or termination of all orany portion of any Secured Obligation; provided, however, thatthe failure to give such notice shall not impair any rights hereunder or underany of the Security Instruments or the Subject Documents.  Nothing contained herein shall prevent,restrict, or limit any right under the applicable Subject Documents for aSecured Party to accelerate or suspend or terminate all or any portion of anySecured Obligation.

 

## **Section 3.3**                                   Priority of Interests.

## ** **

Notwithstandingany agreements or arrangements in existence prior to the date hereof or hereafterarising or the existence or priority of any Lien in any of the Collateral heldby a Secured Party or any other Person on behalf of a Secured Party on the datehereof or hereafter arising without giving effect to this Agreement, the rightsand interests of such Secured Party in the Collateral, and any Lien therein,shall be subject to this Agreement and treated as among the Secured Parties ashaving such priority as set forth herein and shall be shared at all times amongthe Secured Parties in accordance herewith and the Collateral Proceeds of anysale, transfer or other disposition of the Collateral for any reasonswhatsoever shall be distributed in accordance with this Agreement.

 

## **Section 3.4**                                   Distributions.

## ** **

(a)                                  (i)                                     EachSecured Party agrees to share with the other Secured Parties all Distributionsat all times (whether or not a Subject Event of Default shall have occurred andbe continuing and whether or not any Bankruptcy Event shall have commenced orbe continuing with respect to any Credit Party) according to the priorities andin the manner provided in this Section 3.4.  In furtherance of the foregoing, any and all payments and otherDistributions required to be made by any Credit Party in respect of the SecuredObligations****shall at all times be paid by the Credit Parties to theCollateral Agent for distribution in accordance with paragraph (b) of thisSection 3.4.  Each Secured Partyagrees that, notwithstanding the terms of any other Subject Documents, if itshall receive any Distributions (including payments received by setoff ofdeposit balances or otherwise or payments or recoveries from any securityinterest granted to any Secured Party) other than as a result (whether directlyor indirectly through the Revolver Agent or Term Loan Agent, as applicable) ofa distribution by the Collateral Agent pursuant to paragraph (b) of thisSection 3.4, such Secured Party shall promptly (in no event later thanfive (5) Business Days after receipt thereof) pay the same over to theCollateral Agent in the same form as received (with such endorsements as may benecessary), and that until such Secured Party shall have made such payment itwill hold such Distributions in trust for all the Secured Parties.  Each of the Revolving Lenders

 

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herebyauthorize Collateral Agent to direct all Distributions to which they areentitled to the Revolver Agent for distribution in accordance with theRevolving Credit Documents.  Each of theTerm Loan Lenders hereby authorize Collateral Agent to direct all Distributionsto which they are entitled to the Term Loan Agent for distribution inaccordance with the Term Loan Documents.

 

(ii)                                  Promptlyfollowing receipt of any Distributions, the Collateral Agent shall distributeeach Secured Party’s share of the Distributions so received in accordance withparagraph (b) of this Section 3.4 to the Revolver Agent or the Term LoanAgent, as applicable, for application in accordance with the applicable SubjectDocuments.  Until such Distributions areso applied, the Collateral Agent shall hold such amounts in its custody inaccordance with its regular procedures for handling deposited funds.

 

(b)                                 (i)                                     AllDistributions received by the Collateral Agent shall be applied promptly by theCollateral Agent in the following order as of any date of distribution:

 

FIRST:                                                           topayment of the costs, fees and expenses (including any attorneys’ fees)incurred by the Collateral Agent in connection with enforcing the rights andremedies of the Secured Parties hereunder and under the Security Instrumentsand with any or all of the retaking, holding, preserving, processing,advertising, maintaining, preparing for or consummating any sale, lease orother disposition of any Collateral, including trustee’s fees and commissions,court costs and reasonable attorney’s fees and legal expenses pertainingthereto; and then

 

SECOND:                                            to paymentof the costs, fees and expenses (including any attorneys’ fees) due and owingby the Credit Parties to the Revolving Agent and the Term Loan Agent as of suchdate in connection with the Subject Documents (the “Agents’ Fees”),ratably in accordance with the percentage of the Agents’ Fees then due andowing to each of them; and then

 

THIRD:       to the payment of all accrued and unpaid fees(except fees related to the prepayment of principal) and interest then due andpayable by the Credit Parties in respect of the Subject Obligations (the “InterestPayables”); provided that such payments shall be made ratably to theRevolving Agent and the Term Loan Agent in accordance with the percentage ofthe total Interest Payables due and owing as of such date to the RevolvingLenders and the Term Loan Lenders, respectively; and then

 

FOURTH:                                           to thepayment of all principal due and payable by the Credit Parties in respect ofthe Subject Obligations (including due and owing as mandatory prepayments and,if applicable, all amounts necessary to cash collateralize the Letters ofCredit) (the “Principal Payables”); provided that such payments shall bemade ratably to the Revolving Agent and the Term Loan Agent in accordance withthe percentage of the total Principal Payables due and owing as of such date tothe Revolving Lenders and the Term Loan Lenders, respectively; and then

 

FIFTH:                                                          tothe payment in respect of any other costs, expenses or other amounts owing toany Secured Party by the Credit Parties on the Secured Obligations or otherwisein connection with the Subject Documents, except costs, expenses and otheramounts which may be due and owing in connection with any voluntary prepaymentof principal (the “Other Payables”); provided that such payments shallbe made ratably to the Revolving Agent and the Term Loan Agent in accordancewith the percentage of the total Other Payables due and owing as of such dateto the Revolving Lenders and the Term Loan Lenders, respectively; and then

 

SIXTH:                                                        tothe extent directed by the Principal Borrower, to the voluntary payment of theoutstanding principal under the Term Loan Agreement or Revolving CreditAgreement (at the option of and as directed in writing by the PrincipalBorrower), together with any interest accrued thereon, fees due in connectionwith such prepayment and any breakage or other costs and fees payable byBorrower in connection therewith; and then

 

SEVENTH:                                      to the PrincipalBorrower or as otherwise required by applicable law.

 

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(ii)                                  Notwithstandinganything in this Agreement to the contrary, the Collateral Agent shall not beobligated to make a payment pursuant to this Section 3.4(b) until it shallhave received a threshold amount of at least $100,000 of Distributions that areto be distributed at such time pursuant to this Section 3.4.

 

(iii)                               The Revolver Agent andthe Term Loan Agent shall apply all amounts received pursuant to thisSection 3.4(b) in accordance with the terms of the Revolving CreditAgreement and the Term Loan Agreement, respectively.

 

(c)                                  Tothe extent any portion of a Distribution is funded for the purpose of cashcollateralizing a Letter of Credit under the Revolving Credit Agreement (an “UnattachedCash Collateral Amount”) and the applicable Letter of Credit is,thereafter, terminated without having been drawn on, the Revolver Agent (andthe Revolving Lenders) shall return such Unattached Cash Collateral Amount tothe Collateral Agent for re-distribution in accordance with the terms ofSection 3.4(b) of this Agreement.

 

(d)                                 Ifat any time the Collateral Agent, the Agent or any Secured Party shall berequired to restore or return, or if such party (with the consent of theRequired Secured Parties) restores or returns in good faith settlement ofpending or threatened avoidance claims, to any Credit Party or any other Personother than to another Secured Party any Distributions or any portion thereof,whether by reason of the insolvency, reorganization or other similar event inrespect of the Borrower or such Person or otherwise (a “Returned Amount”),then (i) the Collateral Agent shall promptly give notice of the Returned Amountto each Secured Party, and (ii) the Secured Parties shall promptly transfer tothe Collateral Agent (for reimbursement to the Collateral Agent or such SecuredParty, as the case may be) such amounts as are necessary such that each SecuredParty shall have received and retained the amount it would have received underSection 3.4(b) had the Returned Amount not previously been distributed(its “Returned Amount Share”). If any Secured Party (a “Non-Returning Secured Party”) fails totender payment of its Returned Amount Share, then the Collateral Agent ishereby expressly granted the right thereafter to, and shall, withhold from anyDistributions (including, without limitation, Collateral Proceeds) otherwisepayable to such Non-Returning Secured Party an amount equal to its ReturnedAmount Share and apply such amount withheld in satisfaction of such ReturnedAmount Share.  The Collateral Agentshall also have the right to collect from such Non-Returning Secured Party orotherwise to be made to such Non-Returning Secured Party, such Returned AmountShare and the Collateral Agent’s reasonable costs and expenses incurred incollecting such Non-Returning Secured Party’s Returned Amount Share, plusinterest on any unpaid portion of such Returned Amount Share at the federal judgmentrate from, but excluding, the date the Collateral Agent first requested paymentof such Returned Amount Share.  TheAgreements in this Section 3.4(d) shall survive the payment of the SecuredObligations and the termination of the Security Instruments, the other SubjectDocuments and this Agreement.  TheRevolver Agent and the Term Loan Agent shall not be responsible for amountsdistributed by them to the Revolving Lenders or the Term Loan Lenders.  To the extent a Returned Amount has beendistributed by the Revolving Agent or the Term Loan Agent to the RevolvingLenders or the Term Loan Lenders, as applicable, it shall be the responsibilityof such Revolving Lenders or Term Loan Lenders, as applicable, to fund itsReturned Amount Share.

 

## **Section 3.5**                                   Waivers of Rights.

## ** **

Exceptas otherwise expressly set forth herein, until occurrence of the SecurityTermination Date, each Secured Party hereby waives any and all rights each mayindividually (i.e., other than through the Collateral Agent) now or hereafter haveto exercise any Enforcement action. Each Secured Party hereby agrees not to take any action whatsoever toenforce any term or provision of the Security Instruments or to enforce anyright with respect to the Collateral in conflict with the provisions of thisAgreement or the terms and provisions of the Security Instruments.  Nothing set forth above or otherwisecontained in this Agreement shall be interpreted as a waiver of any rights ofsetoff (by contract, law or otherwise) of any Secured Party except inaccordance with the sharing provisions set forth herein.

 

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## **Section 3.6**                                   Additional Collateral.

 

Eachof the Secured Parties hereby covenants and agrees that it will not take,accept or obtain any Lien upon (an “Additional Lien”), any assets of theBorrower or any Subsidiary or Affiliate thereof (other than assets which, ifobtained by such Person, would constitute Collateral to secure the payment andperformance of the Secured Obligations), unless the Collateral Agent on behalfof all Secured Parties is granted a paripassu Lien upon suchassets and such assets become Collateral subject to this Agreement, in eithercase, pursuant to documents in form and substance satisfactory to all of theSecured Parties.

 

## **Section 3.7**                                   Pari Passu Nature of Obligations.

## ** **

EachSecured Party acknowledges and agrees that the Secured Obligations share thebenefit and Lien priority of and to the Security Instruments, the Collateraland the Collateral Proceeds and the benefit of the Subsidiary Guaranties andthe Distributions on the basis specified in Section 3.4(b).

 

## **Section 3.8**                                   Payments.

## ** **

Allpayments to be made by the Collateral Agent pursuant to the terms and provisionof this Intercreditor Agreement shall be made by wire transfer of immediatelyavailable funds to the bank account specified in writing to the CollateralAgent by the applicable party entitled thereto.

 

# **SECTION 4**

# ** **

# **REPRESENTATIONS AND WARRANTIES**

# ** **

## **Section 4.1**                                   Representation of the Revolver Agent.

## ** **

TheRevolving Agent represents that the Revolving Lenders identified on thesignature pages hereto represent 100% of the aggregate Commitments under theRevolving Credit Agreement as of the date hereof and that such Revolving Lenderhave each, to the best of its knowledge, executed this Agreement.

 

## **Section 4.2**                                   Representation of the Term LoanAgent.

## ** **

TheTerm Loan Agent represents that the Term Loan Lenders identified on thesignature pages hereto represent 100% of the outstanding Term Loans and/orCommitments (as applicable) under the Term Loan Agreement as of the date hereofand that such Term Loan Lender have each, to the best of its knowledge,executed this Agreement.

 

## **Section 4.3**                                   Representations of All Signatories.

## ** **

Eachof the undersigned hereby represents and warrants that he/she has the power andauthority to execute and deliver this Agreement on behalf of the institutionfor which such individual is signing this Agreement and that the execution anddelivery hereof has been duly authorized and approved by such institution.

 

# **SECTION 5**

# ** **

# **AGREEMENTS AMONG THE SECURED PARTIES**

# ** **

## **Section 5.1**                                   Independent Actions by SecuredParties.

## ** **

(a)                                  AnySecured Party may, without instruction from the Collateral Agent, but in noevent shall be required to, take action permitted by applicable law or inaccordance with the terms of the Subject Documents to preserve (but notenforce) its rights and Liens in any item of Collateral securing the paymentand performance of the Secured Obligations, including but not limited to curingany default or alleged

 

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defaultunder any contract entered into by any Credit Party, paying any tax, fee orexpense on behalf of any Credit Party and paying insurance premiums on behalfof any Credit Party so long as such action shall not impair the rights of theCollateral Agent or of any other Secured Party or otherwise be contrary to theterms of this Agreement or any Subject Document.

 

(b)                                 Nothingcontained in this Agreement shall prohibit any Secured Party from acceleratingthe maturity of, or demanding payment from any Credit Party on, any SubjectObligation of the Borrower to such Secured Party or from instituting legalaction against any such Credit Party to obtain a judgment or other legalprocess in respect of such Subject Obligation, but any funds received from theBorrower, any Subsidiary or any Subsidiary Guarantor in connection with anyrecovery therefrom shall constitute Distributions and shall be subject to theterms of this Agreement.

 

## **Section 5.2**                                   Relation of Secured Parties.

## ** **

ThisAgreement is entered into solely for the purposes set forth herein, and noSecured Party assumes any responsibility to any other party hereto to advisesuch other party of information known to such other party regarding the financialcondition of any Credit Party or of any other circumstances bearing upon therisk of nonpayment of the Subject Obligations. Each Secured Party specifically acknowledges and agrees that nothingcontained in this Agreement is or is intended to be for the benefit of anyCredit Party or any other Person that is not a party hereto and nothingcontained herein shall limit any of the obligations of any Credit Party to theSecured Parties.

 

# **SECTION 6**

# ** **

# **MISCELLANEOUS**

# ** **

## **Section 6.1**                                   Entire Agreement and ConsistentProvisions; Closing Date.

## ** **

ThisAgreement represents the entire Agreement among the Secured Parties and, exceptas otherwise provided, this Agreement may not be altered, amended or modifiedexcept in a writing executed by all the parties to this Agreement.

 

## **Section 6.2**                                   Notices.

## ** **

Noticeshereunder shall be given to the Secured Parties at their addresses as set forthbelow their signatures on the signature pages hereto or at such other addressas may be designated by each in a written notice to the other parties hereto.

 

## **Section 6.3**                                   Successors and Assigns.

## ** **

ThisAgreement shall be binding upon and inure to the benefit of each of the SecuredParties and their respective successors and assigns, whether so expressed ornot, and, in particular, shall inure to the benefit of and be enforceable byany future holder or holders of any Subject Obligations, and the term “SecuredParty” shall include any such subsequent holder of Subject Obligations,wherever the context permits.

 

## **Section 6.4**                                   Consents, Amendment, Waivers.

## ** **

(a)                                  Allamendments, waivers, modifications, supplements or consents of any provision ofthis Agreement shall be effective only if the same shall be in writing andsigned by the Required Secured Creditors; provided that any amendment,modification, supplement or waiver of Sections 3.4, 3.6, 3.7 or 6.4 of thisAgreement or the definitions of Distribution, Revolving Loan Obligations, TermLoan Obligations, Subject Obligations, Secured Obligations, Required RevolvingLenders, Required Term Loan Lenders, Required Secured Parties, or SecuredParties contained in this Agreement shall require the unanimous prior writtenconsent of all the Secured Parties.

 

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(b)                                 Allamendments or waivers of any provision of or consent pursuant to or under anySecurity Instrument shall be effective only if the same shall be in writing andsigned by the Collateral Agent and the Required Secured Parties.  In addition, any release of Collateral shallrequire the unanimous prior written consent of all the Secured Parties (exceptto the extent such release may, pursuant to the applicable Subject Documents,be permitted by the Revolver Agent or the Term Loan Agent, as applicable, inwhich case only the prior written consent of the applicable agent shall berequired).

 

(c)                                  Anyamendments, waivers or consents of any provision of this Agreement affectingthe rights or obligations of the Collateral Agent shall also require the priorwritten consent of the Collateral Agent.

 

(d)                                 Allamendments or waivers of any of the other Subject Documents or the provisionsthereof shall be made in accordance with the provisions of Section 11.6 ofthe Revolving Credit Agreement and Section 11.6 Term Loan Agreement,respectively, and the provisions of Section 11.6 of each such documentshall not be amended, waived or otherwise modified without the consent of eachof the Secured Parties.

 

(e)                                  EachSecured Party hereby covenants and agrees with each other Secured Party that itshall not amend, waive, modify, supplement or waive any provision of thisAgreement, the Security Instruments or any other Subject Document except inaccordance with this Section 6.4.

 

## **Section 6.5**                                   Governing Law.

## ** **

(a)                                  ThisAgreement shall be construed and enforced in accordance with, and the rights ofthe parties shall be governed by, the law of the State of North Carolinaexcluding choice-of-law principles of the laws of such State that would requirethe application of the laws of a jurisdiction other than such State.

 

(b)                                 Anylegal action or proceeding with respect to this Agreement or any other SubejctDocument may be brought in the courts of the State of North Carolina inMecklenburg County, or of the United States for the Western District of NorthCarolina, and, by execution and delivery of this Agreement, each of the partieshereto hereby irrevocably accepts for itself and in respect of its property,generally and unconditionally, the nonexclusive jurisdiction of suchcourts.  Each of the parties heretofurther irrevocably consents to the service of process out of any of theaforementioned courts in any such action or proceeding by the mailing of copiesthereof by registered or certified mail, postage prepaid, to it at the addressset out for notices on the signature pages hereto, such service to becomeeffective three (3) days after such mailing.  Nothing herein shall affect the right of the Collateral Agent toserve process in any other manner permitted by law or to commence legalproceedings or to otherwise proceed against any Credit Party in any otherjurisdiction. Each of the Credit Parties hereby irrevocably waives anyobjection which it may now or hereafter have to the laying of venue of any ofthe aforesaid actions or proceedings arising out of or in connection withCredit Agreement or any other Subject Document brought in the courts referredto in this subsection (a) and hereby further irrevocably waives and agreesnot to plead or claim in any such court that any such action or proceedingbrought in any such court has been brought in an inconvenient forum.

 

(c)                                  TOTHE EXTENT PERMITTED BY LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLYWAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIMARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDITDOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

## **Section 6.6**                                   Counterparts.

 

ThisAgreement may be executed in any number of counterparts, all of which takentogether shall constitute one Agreement, and any of the parties hereto mayexecute this Agreement by signing any such counterpart.

 

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## **Section 6.7**                                   Sale of Interest.

## ** **

NoSecured Party will sell, transfer or otherwise dispose of any interest in theSubject Obligations unless such purchaser or transferee shall agree, inwriting, to be bound by the terms of this Agreement and shall have executed anddelivered an ICA Joinder Agreement substantially in the form of Schedule A.

 

## **Section 6.8**                                   Severability; Repurchase in theEvent of Avoidance Actions.

## ** **

(a)                                  Iffor any reason, the allocation of Distributions among the Secured Parties inaccordance with Section 3.4(b) of this Agreement is finally determined bya court of competent jurisdiction to be unenforceable in whole or in part, thenthe Secured Parties will purchase and exchange such participations in therespective Secured Obligations as may be required so that each Secured Party,after giving effect to all such purchases and exchanges, shall have receivedand retained cash payments in respect of the amounts distributable underSection 3.4(b) equal to the amount such Secured Party would have receivedif the amounts had been applied in accordance with such Section 3.4(b); provided,however, if in connection with a Bankruptcy Event of the Borrower anyportion of the Subject Obligations or the Borrower’s obligations under theSecurity Instruments referred to in clauses THIRD, FOURTH, FIFTH, or SIXTH ofSection 3.4(b)(i) is determined to be unenforceable or is disallowed (suchportion to be hereinafter referred to as a “Disallowed Obligation”),then this Section 6.8(a) shall not be applied or construed in such mannerto enable the holder of any such Disallowed Obligation to receive anyDistribution on account of such Disallowed Obligation.  It is the intent of this Section 6.8(a)to establish an alternative mechanism to preserve as among the parties heretothe distribution priorities and the sharing calculation formulas set forth inSection 3.4(b) the same as if this Agreement had been given effect amongthe parties hereto and the same as if the Secured Obligations were allowed orenforced against the Borrower in accordance with their terms.  It is not, however, the intent of thisSection 6.8(a) to enable any party hereto to receive or retain anyDistribution with respect to any Disallowed Obligation to the extent suchDisallowed Obligation has been disallowed or is otherwise determined to beunenforceable as against the Borrower.

 

(b)                                 Ifin connection with a Bankruptcy Event of the Borrower (i) the fees and expensesof the Collateral Agent referred to in clause FIRST of Section 3.4(b)(i)are determined to be unenforceable or are disallowed, in whole or in part, eachSecured Party agrees to pay its Indemnity Share of such fees and expenses.

 

(c)                                  Exceptto the extent contemplated by clauses (a) and (b) hereof, in case any one ormore of the provisions contained in this Agreement shall be invalid, illegal orunenforceable in any respect, the validity, legality and enforceability of theremaining provisions of this Agreement shall not in any way be affected orimpaired thereby.

 

## **Section 6.9**                                   Terms of Agreement.

## ** **

ThisAgreement shall terminate when all Secured Obligations are paid in full andsuch payments are not subject to any possibility of revocation or rescission oruntil all of the Secured Parties hereto mutually agree in a writing toterminate this Agreement.

 

## **Section 6.10**                            DeliveryPayments.

## ** **

Notwithstandinganything to the contrary contained in any of the Subject Documents, allDistributions shall be delivered by the Borrower and each Secured Party to theCollateral Agent for distribution to the Secured Parties pursuant to the termsand conditions set forth herein.

 

## **Section 6.11**                            Reimbursement/Indemnificationby Borrower.

## ** **

(a)                                  TheBorrower agrees to pay to the Collateral Agent, from time to time upon demand,all reasonable fees, costs and expenses of the Collateral Agent (including thereasonable fees and  charges of counsel)(i) arising in connection with the administration or enforcement of any of theprovisions of this Agreement or the Security Instruments, (ii) incurred orrequired to be advanced in connection with the administration of theCollateral,

 

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the sale or otherdisposition of the Collateral pursuant to any Security Instruments and thepreservation, protection or defense of the Collateral Agent’s rights under thisAgreement and the Security Instruments, or (iii) incurred by the CollateralAgent in connection with the resignation of the Collateral Agent pursuant toSection 2.9 hereof.

 

(b)                                 TheBorrower agrees to indemnify each Agent Party in its capacity as such from andagainst any Indemnified Liabilities; providedthat, the Borrowershall not be liable for the payment of any portion of such Indemnified Liabilitiesresulting solely from an Agent’s Party’s gross negligence or willfulmisconduct.

 

 

**[Signatureson following pages]**

 

17

----

 

INWITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executedas of the date first above written.

 
| **COLLATERAL  AGENT:** |
|------------------------|
|                   |
|                   | **BANK OF  AMERICA, N.A.**, in its  capacity as Collateral Agent |
|                   |   |
|                   |   |
|                   | By: |   |   |
|                   | Name: |   |   |
|                   | Title: |   |   |
|                        |  |  |  |  |  |

 

Addressfor Notice to Bank of America, N.A., in its capacity as Collateral Agent:

 

Ramon Garcia, AgencyManagement OfficerGGIB Agency Management CentralBank of America901 Main St.Dallas, TX  75202-3714Telephone:  (214) 209-4126Fax:                           (214)290-9520E-mail:             ramon.garcia@bankofamerica.com

 

18

----

 
| **REVOLVER  AGENT:** |
|----------------------|
|                 |
|                 | **BANK OF  AMERICA, N.A.**, in its  capacity as Revolver Agent |
|                 |   |
|                 |   |
|                 | By: |   |   |
|                 | Name: |   |   |
|                 | Title: |   |   |
|                      |  |  |  |  |  |

 

Addressfor Notice to Bank of America, N.A., in its capacity as Revolver Agent:

 

Ramon Garcia,Agency Management Officer

GGIB AgencyManagement Central

Bank of America

901 Main St.

Dallas, TX  75202-3714

Telephone:  (214) 209-4126

Fax:                           (214)290-9520

E-mail:             ramon.garcia@bankofamerica.com

 

19

----

 
| **TERM LOAN  AGENT:** |
|-----------------------|
|                  |
|                  | **BANK OF  AMERICA, N.A.**, in its  capacity as Term Loan Agent |
|                  |   |
|                  |   |
|                  | By: |   |   |
|                  | Name: |   |   |
|                  | Title: |   |   |
|                       |  |  |  |  |  |

 

Addressfor Notice to Bank of America, N.A., in its capacity as Term Loan Agent:

 

Ramon Garcia,Agency Management Officer

GGIB AgencyManagement Central

Bank of America

901 Main St.

Dallas, TX  75202-3714

Telephone:  (214) 209-4126

Fax:                           (214)290-9520

E-mail:             ramon.garcia@bankofamerica.com

 

20

----

 
| **REVOLVING LENDERS**: | **BANK OF AMERICA, N.A.**individually in its capacity as a  Lender |
|------------------------|--------------------------------------------------------------------|
|                   |                                                               |
|                   | By:                                                                |   |   |
|                   | Name:                                                              |   |   |
|                   | Title:                                                             |   |   |
|                        |                                                                    |  |  |  |  |

 

Address for Notice toBank of America, N.A., in its capacity as a Revolving Lender (forcredit-related matters):

 

Bankof America, N.A.

231South LaSalle Street

M/C:  IL1-231-10-35

Chicago,IL  60697

Attention:Matthew W. Sadler, Vice President, Global Portfolio Management, Real Estate

Phone:  (312) 828-7107

Fax:  (312) 974-4970

E-mail:  matthew.w.sadler@bankofamerica.com

 

Address for Notice toBank of America, N.A., in its capacity as a Revolving Lender (for administrative matters):

 

Bankof America, N.A.

231South LaSalle Street

Mailcode:  IL1-231-10-30

Chicago,IL 60697

Attention:Charlene E. Wright-Jones, Assistant Vice President

Phone:  312-828-4160

Fax:  312-828-3950

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

 

21

----

 
| **TERM LOAN LENDERS**: | **BANK OF AMERICA, N.A.**  individually in its capacity as a  Lender |
|------------------------|----------------------------------------------------------------------|
|                   |                                                                 |
|                   | By:                                                                  |   |   |
|                   | Name:                                                                |   |   |
|                   | Title:                                                               |   |   |
|                        |                                                                      |  |  |  |  |

 

Address for Notice toBank of America, N.A., in its capacity as a Term Loan Lender (forcredit-related matters):

 

Bankof America, N.A.

231South LaSalle Street

M/C:  IL1-231-10-35

Chicago,IL  60697

Attention:Matthew W. Sadler, Vice President, Global Portfolio Management, Real Estate

Phone:  (312) 828-7107

Fax:  (312) 974-4970

E-mail:  matthew.w.sadler@bankofamerica.com

 

Address for Notice toBank of America, N.A., in its capacity as a Term Loan Lender (for administrative matters):

 

Bankof America, N.A.

231South LaSalle Street

Mailcode:  IL1-231-10-30

Chicago,IL 60697

Attention:Charlene E. Wright-Jones, Assistant Vice President

Phone:  312-828-4160

Fax:  312-828-3950

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

 

22

----

 
| **PRINCIPAL BORROWER**: | **U.S.  RESTAURANT  PROPERTIES  OPERATING L.P.** |
|-------------------------|------------------------------------------------------------|
|                    |                                                       |
|                    | By:  USRP MANAGING, INC.                              |
|                    |                                                       |
|                    |                                                       | By: |   | /s/ Stacy M.  Riffe |   |
|                    |                                                       | Name: | Stacy M. Riffe |   |
|                    |                                                       | Title: | Chief Financial  Officer |   |
|                    |                                                       |   |   |
| **GENERAL SPE:**        | **USRP FUNDING 2002-A, L.P.**                              |
|                    |                                                       |
|                    | By:  USRP (SFGP) 2, LLC                               |
|                    |                                                       |
|                    |                                                       | By: |   | /s/ Stacy M.  Riffe |   |
|                    |                                                       | Name: | Stacy M. Riffe |   |
|                    |                                                       | Title: | Chief Financial  Officer |   |
|                    |                                                       |   |   |
| **S&C:**            | **USRP (S&C), LLC**                                    |
|                    |                                                       |
|                    |                                                       | By: |   | /s/ Stacy M.  Riffe |   |
|                    |                                                       | Name: | Stacy M. Riffe |   |
|                    |                                                       | Title: | Chief Financial  Officer |   |
|                    |                                                       |   |   |
| **HCI:**                | **USRP/HCI PARTNERSHIP 1, L.P.**                           |
|                    |                                                       |
|                    | By:  USRP (JV1), LLC                                  |
|                    |                                                       |
|                    |                                                       | By: |   | /s/ Stacy M.  Riffe |   |
|                    |                                                       | Name: | Stacy M. Riffe |   |
|                    |                                                       | Title: | Chief Financial  Officer |   |
|                    |                                                       |
| **JV1:**                | **USRP (JV1), LLC**                                        |
|                    |                                                       |
|                    |                                                       | By: |   | /s/ Stacy M.  Riffe |   |
|                    |                                                       | Name: | Stacy M. Riffe |   |
|                    |                                                       | Title: | Chief Financial  Officer |   |
|                    |                                                       |   |   |
| **USRP Holding:**       | **USRP HOLDING CORP.**                                     |
|                    |                                                       |
|                    |                                                       | By: |   | /s/ Stacy M.  Riffe |   |
|                    |                                                       | Name: | Stacy M. Riffe |   |
|                    |                                                       | Title: | Chief Financial  Officer |   |
|                    |                                                       |   |   |
|                    |                                                       |
| **GENERAL PARTNER**:    | **USRP MANAGING, INC.**                                    |
|                    |                                                       |
|                    |                                                       | By: |   | /s/ Stacy M.  Riffe |   |
|                    |                                                       | Name: | Stacy M. Riffe |   |
|                    |                                                       | Title: | Chief Financial  Officer |   |
|                    |                                                       |   |   |
| **USRP REIT**:          | **U.S. RESTAURANT PROPERTIES, INC.**                       |
|                    |                                                       |
|                    |                                                       |
|                    |                                                       | By: |   | /s/ Stacy M.  Riffe |   |
|                    |                                                       | Name: | Stacy M. Riffe |   |
|                    |                                                       | Title: | Chief Financial  Officer |   |

 

23

----

 
| **SUBSIDIARY  GUARANTORS**: | **ARKANSAS RESTAURANTS #10, L.P.,**a  Texas limited partnership    |
|-----------------------------|--------------------------------------------------------------------|
|                        |                                                               |
|                        |                                                               | By: North  American Restaurant Management, Inc. |
|                        |                                                               |   |
|                        |                                                               | By: |   | /s/ Stacy M.  Riffe |   |
|                        |                                                               | Name: | Stacy M. Riffe |   |
|                        |                                                               | Title: | Chief Financial  Officer |   |
|                        |                                                               |
|                        | **RESTAURANT PROPERTY PARTNERS, L.P.,**a Texas limited partnership |
|                        |                                                               |
|                        |                                                               | By: Restaurant  Funding, Inc. |
|                        |                                                               |   |
|                        |                                                               | By: |   | /s/ Stacy M.  Riffe |   |
|                        |                                                               | Name: | Stacy M. Riffe |   |
|                        |                                                               | Title: | Chief Financial  Officer |   |
|                        |                                                               |
|                        | **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 |   |
|                        |                                                               |
|                        | **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 (PAC), L.P.,**a  Texas limited partnership                  |
|                        |                                                               |
|                        |                                                               | By: USRP (Cap),  Inc. |
|                        |                                                               |   |
|                        |                                                               | By: |   | /s/ Stacy M.  Riffe |   |
|                        |                                                               | Name: | Stacy M. Riffe |   |
|                        |                                                               | Title: | Chief Financial  Officer |   |

 

24

----

 
|   | **USRP (QUEST), L.P.,**a  Texas limited partnership                   |
|--------|-----------------------------------------------------------------------|
|   |                                                                  |
|   |                                                                  | By: USRP GP4,  LLC |
|   |                                                                  |   |
|   |                                                                  | By: |   | /s/ Stacy M.  Riffe |   |
|   |                                                                  | Name: | Stacy M. Riffe |   |
|   |                                                                  | Title: | Chief Financial  Officer |   |
|   |                                                                  |
|   | **USRP (SAN ANTONIO), LTD.,**a  Texas limited partnership             |
|   |                                                                  |
|   |                                                                  | By: USRP GP, LLC |
|   |                                                                  |   |
|   | By:                                                                   |   | /s/ Stacy M.  Riffe |   |
|   |                                                                  | Name: | Stacy M. Riffe |   |
|   |                                                                  | Title: | Chief Financial  Officer |   |
|   |                                                                  |
|   | **USRP (T&C), L.P.,**a  Texas limited partnership                 |
|   |                                                                  |
|   |                                                                  | By: USRP GP3,  LLC |
|   |                                                                  |   |
|   |                                                                  | By: |   | /s/ Stacy M.  Riffe |   |
|   |                                                                  | Name: | Stacy M. Riffe |   |
|   |                                                                  | Title: | Chief Financial  Officer |   |
|   |                                                                  |
|   | **BULLDOG MANAGEMENT, INC.**                                          |
|   |                                                                  |
|   |                                                                  | By: |   | /s/ Stacy M.  Riffe |   |
|   |                                                                  | Name: | Stacy M. Riffe |   |
|   |                                                                  | Title: | Chief Financial  Officer |   |
|   |                                                                  |   |   |   |
|   | **NORTH AMERICAN RESTAURANT  MANAGEMENT, INC.**                       |
|   |                                                                  |
|   |                                                                  | By: |   | /s/ Stacy M.  Riffe |   |
|   |                                                                  | Name: | Stacy M. Riffe |   |
|   |                                                                  | Title: | Chief Financial  Officer |   |
|   |                                                                  |   |   |   |
|   | **RESTAURANT FUNDING, INC.**                                          |
|   |                                                                  |
|   |                                                                  | By: |   | /s/ Stacy M.  Riffe |   |
|   |                                                                  | Name: | Stacy M. Riffe |   |
|   |                                                                  | Title: | Chief Financial  Officer |   |
|   |                                                                  |   |   |   |
|   | **PINNACLE RESTAURANT GROUP, LLC,**a  Texas limited liability company |
|   |                                                                  |
|   |                                                                  | By: |   | /s/ Stacy M.  Riffe |   |
|   |                                                                  | Name: | Stacy M. Riffe |   |
|   |                                                                  | Title: | Chief Financial  Officer |   |
|   |                                                                  |   |   |   |
|   | **USRP (ACQUISITION), LLC,**a  Texas limited liability company        |
|   |                                                                  |
|   |                                                                  | By: |   | /s/ Stacy M.  Riffe |   |
|   |                                                                  | Name: | Stacy M. Riffe |   |
|   |                                                                  | Title: | Chief Financial  Officer |   |
|        |                                                                       |  |  |  |  |  |

 

25

----

 
|   | **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 (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 |   |
|   |                                                              |   |   |   |
|   | **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 |   |

 

26

----

 
|   | **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 |   |
|   |                                                       |   |   |   |
|   | **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 |   |
|   |                                                       |   |   |   |
|   | **USRP GP4, LLC,**a  Texas limited liability company       |
|   |                                                       |
|   |                                                       | By: |   | /s/ Stacy M.  Riffe |   |
|   |                                                       | Name: | Stacy M. Riffe |   |
|   |                                                       | Title: | Chief Financial  Officer |   |

 

27

----

 
|   | **USRP GP5, LLC,**a  Texas limited liability company        |
|--------|-------------------------------------------------------------|
|   |                                                        |
|   |                                                        | By: |   | /s/ Stacy M.  Riffe |   |
|   |                                                        | Name: | Stacy M. Riffe |   |
|   |                                                        | Title: | Chief Financial  Officer |   |
|   |                                                        |   |   |   |
|   | **USRP GP6, LLC,**a  Texas limited liability company        |
|   |                                                        |
|   |                                                        | By: |   | /s/ Stacy M.  Riffe |   |
|   |                                                        | Name: | Stacy M. Riffe |   |
|   |                                                        | Title: | Chief Financial  Officer |   |
|   |                                                        |   |   |   |
|   | **USRP GP7, 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 |   |
|   |                                                        |   |   |   |
|   | **USRP (JV2), LLC,**a  Texas limited liability company(1)   |
|   |                                                        |
|   |                                                        | By: |   | /s/ Stacy M.  Riffe |   |
|   |                                                        | Name: | Stacy M. Riffe |   |
|   |                                                        | Title: | Chief Financial  Officer |   |
|   |                                                        |   |   |   |

 

 

----

*(1)  NOTE – ALTHOUGH INCLUDED IN THE EXECUTEDSIGNATURE PAGES OF THIS DOCUMENT, THE JV2 ENTITY HAS BEEN DELETED AS AGUARANTOR UNDER EACH OF THE REVOLVING CREDIT AGREEMENT AND THE TERM LOANAGREEMENT– IT IS NOT A CONSOLIDATED PARTY AND WAS INCLUDED BY THE BORROWER INITS LIST OF SUNSIDIARY GUARANTORS IN ERROR*

 

28

----

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

 

29

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

 

30

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

 

31

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|   | **RESTAURANT CONTRACTOR CORP.**                             |
|--------|-------------------------------------------------------------|
|   |                                                        |
|   |                                                        | By: |   | /s/ Stacy M.  Riffe |   |
|   |                                                        | Name: | Stacy M. Riffe |   |
|   |                                                        | Title: | Chief Financial  Officer |   |
|   |                                                        |   |   |   |
|   | **USRP RENOVATION CORP.**                                   |
|   |                                                        |
|   |                                                        | By: |   | /s/ Stacy M.  Riffe |   |
|   |                                                        | Name: | Stacy M. Riffe |   |
|   |                                                        | Title: | Chief Financial  Officer |   |
|   |                                                        |   |   |   |
|   | **USRP (Green), LLC,**a  Texas limited liability company    |
|   |                                                        |
|   |                                                        | By: |   | /s/ Stacy M.  Riffe |   |
|   |                                                        | Name: | Stacy M. Riffe |   |
|   |                                                        | Title: | Chief Financial  Officer |   |
|   |                                                        |   |   |   |
|   | **USRP (Martin), LLC,**a  Texas limited liability company   |
|   |                                                        |
|   |                                                        | By: |   | /s/ Stacy M.  Riffe |   |
|   |                                                        | Name: | Stacy M. Riffe |   |
|   |                                                        | Title: | Chief Financial  Officer |   |
|   |                                                        |   |   |   |
|   | **USRP (SFGP)2, LLC,**a  Texas limited liability company    |
|   |                                                        |
|   |                                                        | By: |   | /s/ Stacy M.  Riffe |   |
|   |                                                        | Name: | Stacy M. Riffe |   |
|   |                                                        | Title: | Chief Financial  Officer |   |
|   |                                                        |   |   |   |
|   | **USRP (SHOPORT)1, LLC,**a  Texas limited liability company |
|   |                                                        |
|   |                                                        | By: |   | /s/ Stacy M.  Riffe |   |
|   |                                                        | Name: | Stacy M. Riffe |   |
|   |                                                        | Title: | Chief Financial  Officer |   |
|   |                                                        |   |   |   |
|   | **USRP (Warren), LLC,**a  Texas limited liability company   |
|   |                                                        |
|   |                                                        | By: |   | /s/ Stacy M.  Riffe |   |
|   |                                                        | Name: | Stacy M. Riffe |   |
|   |                                                        | Title: | Chief Financial  Officer |   |
|   |                                                        |   |   |   |
|   | **USRP (KRUSE), LLC,**a  Texas limited liability company    |
|   |                                                        |
|   |                                                        | By: |   | /s/ Stacy M.  Riffe |   |
|   |                                                        | Name: | Stacy M. Riffe |   |
|   |                                                        | Title: | Chief Financial  Officer |   |
|   |                                                        |   |   |   |
|   | **USRP (PETERS), LLC,**a  Texas limited liability company   |
|   |                                                        |
|   |                                                        | By: |   | /s/ Stacy M.  Riffe |   |
|   |                                                        | Name: | Stacy M. Riffe |   |
|   |                                                        | Title: | Chief Financial  Officer |   |

 

32

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|                                           | **USRP (ADAMS), L.P.**                           |
|------------------------------------------------|--------------------------------------------------|
|                                           |                                             |
|                                           |                                             | By: | USRP GP7, LLC |   |
|                                           |                                             |   |   |   |   |
|                                           |                                             | By: |   | /s/ Stacy M.  Riffe |   |
|                                           |                                             | Name: | Stacy M. Riffe |   |
|                                           |                                             | Title: | Chief Financial  Officer |   |
|                                           |                                             |   |   |   |
|                                           | **USRP (Maier), L.P.**                           |
|                                           |                                             |
|                                           |                                             | By: | USRP GP6, LLC |   |
|                                           |                                             |   |   |   |   |
|                                           |                                             | By: |   | /s/ Stacy M. Riffe |   |
|                                           |                                             | Name: | Stacy M. Riffe |   |
|                                           |                                             | Title: | Chief Financial  Officer |   |
|                                           |                                             |   |   |   |
|                                           | **USRP (SHO)1, L.P.**                            |
|                                           |                                             |
|                                           |                                             | By: | USRP (SHOPORT)1,  LLC |   |
|                                           |                                             |   |   |   |   |
|                                           |                                             | By: |   | /s/ Stacy M.  Riffe |   |
|                                           |                                             | Name: | Stacy M. Riffe |   |
|                                           |                                             | Title: | Chief Financial  Officer |   |
|                                           |                                             |   |   |   |
| Address for  Notice to All/Any Credit Parties: |                                             |
|                                           |                                             |
|                                           | U.S.  Restaurant Properties Operating, L.P. |   |
|                                           | c/o U.S. Restaurant Properties, Inc.             |   |
|                                           | 12240 Inwood Road, Suite 300                     |   |
|                                           | Dallas, TX 75244                                 |   |
|                                           | Attn:  Stacy M. Riffe, CFO                  |   |
|                                           | Telephone: (972) 387-1487, ext 112               |   |
|                                           | Telecopy: (972) 490-9119                         |   |
|                                                |                                                  |  |  |  |  |  |  |

 

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

 

33

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**Schedule      – Formof ICA Joinder Agreement**

 

ICAJOINDER AGREEMENT, dated                              ,200    , among BANK OF AMERICA, N.A. as Collateral Agentand                                                  ,as transferee of **[Revolving Loan Obligations and Revolving Loans / Term Loan Obligationsand Term Loans]**in aggregate amount of                          **[provideCommitment and Loan amounts for Revolving Lenders and Loan amount for Term LoanLenders]**(the “Transferred Obligation”) (the “Transferee”).

 

1.                                       Inaccordance with Section 6.7 of the Intercreditor Agreement dated as ofNovember 4, 2003 among BANK OF AMERICA, N.A. as Collateral Agent,U.S.  RESTAURANT PROPERTIES OPERATINGL.P., a Delaware limited partnership (“USRP Operating” or the “PrincipalBorrower”), USRP FUNDING 2002-A, L.P., a Texas limited partnership (the “GeneralSPE”); USRP (S&C), LLC, a Texas limited liability company (“S&C”),USRP (JV1), LLC, a Texas limited liability company (“JV1”), USRP/HCIPARTNERSHIP 1, L.P., a Texas limited partnership (“HCI”),USRP HOLDINGCORP., a Texas corporation (“USRP Holding”; and together with the PrincipalBorrower, the General SPE, S&C, JV1 and HCI, the “Borrower”), theGuarantors referenced therein and certain of the Borrowers’ creditors listedtherein, and their successors and assigns (the “Intercreditor Agreement”),the Transferee agrees to be bound by and have the rights and obligations of aparty to, the Intercreditor Agreement in all respects as if it were an originalparty thereto, and, in accordance with Section 6.3 of the IntercreditorAgreement, shall be a “Secured Party” in accordance with the terms thereof.

 

2.                                       Sections6.5, 6.6 and 6.9 to the Intercreditor Agreement are hereby incorporated hereinby reference.

 

3.                                       Forthe purpose of Section 6.2 of the Intercreditor Agreement, the address fornotices to the Transferee shall be as set forth below its signature.

 

INWITNESS HEREOF, the parties hereto have executed this Agreement as of the datefirst written above.

 
|                |   | [TRANSFEREE]         |   |
|---------------------|--------|----------------------|--------|
|                |   |                 |   |
|                |   |                 |   |   |
|                |   | Name:                |   |   |
|                |   | Title:               |   |   |
|                |   |                 |   |   |
|                |   | Address for  notice: |   |   |
|                |   |                 |   |   |
|                |   |                 |   |   |
|                |   |                 |   |   |
|                |   |                 |   |   |
|                |
| [Collateral  Agent] |
|                |
|                |   |
| Name:               |
| Title:              |
|                     |        |                      |        |  |  |

 

34

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