**Exhibit 4.03**

 

 

## **REGISTRATION RIGHTS AGREEMENT**

 

ThisRegistration Rights Agreement (this “Agreement”) is made and enteredinto as of June 12, 2003, among U.S. Restaurant Properties, Inc., a Marylandcorporation (the “Company”), and the purchasers signatory hereto (eachsuch purchaser is a “Purchaser” and all such purchasers are,collectively, the “Purchasers”).

 

This Agreementis made pursuant to the Securities Purchase Agreement, dated as of the datehereof among the Company and the Purchasers (the “Purchase Agreement”).

 

The Companyand the Purchasers hereby agree as follows:

 

1. Definitions

 

**Capitalized termsused and not otherwise defined herein that are defined in the PurchaseAgreement shall have the meanings given such terms in the Purchase  Agreement.** As usedin this Agreement, the following terms shall have the following meanings:

 

“Effectiveness Date” means, the 90thcalendar day (150th calendar day in the event of a “full review” bythe Commission) following the Closing Date, and, with respect to any additionalRegistration Statements which may be required pursuant to Section 3(c), the 60thcalendar day following the date on which the Company first knows, or reasonablyshould have known, that such additional Registration Statement is requiredhereunder; provided, however, in the event the Company isnotified by the Commission that one of the above Registration Statements willnot be reviewed or is no longer subject to further review and comments, theEffectiveness Date as to such Registration Statement shall be the fifth TradingDay following the date on which the Company is so notified if such dateprecedes the dates required above.

 

“Effectiveness Period” shall have themeaning set forth in Section 2(a).

 

“Filing Date” means the 60thday following the Closing Date and, with respect to any additional RegistrationStatements which may be required pursuant to Section 3(c), the 15thday following the date on which the Company first knows, or reasonably shouldhave known that such additional Registration Statement is required hereunder

 

“Holder” or “Holders” means theholder or holders, as the case may be, from time to time of RegistrableSecurities.

 

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“Indemnified Party” shall have themeaning set forth in Section 5(c) hereof.

 

“Indemnifying Party” shall have themeaning set forth in Section 5(c) hereof.

 

“Prospectus” means the prospectusincluded in a Registration Statement (including, without limitation, aprospectus that includes any information previously omitted from a prospectusfiled as part of an effective registration statement in reliance upon Rule 430Apromulgated under the Securities Act), as amended or supplemented by anyprospectus supplement, with respect to the terms of the offering of any portionof the Registrable Securities covered by a Registration Statement, and allother amendments and supplements to the Prospectus, including post-effectiveamendments, and all material incorporated by reference or deemed to beincorporated by reference in such Prospectus.

 

“Registrable Securities” means all ofthe shares of Common Stock issuable upon conversion in full of the PreferredStock, exercise in full of the Warrants, shares of Common Stock issuable aspayment of dividends on the Preferred Stock (assuming for purposes that all ofthe shares of Preferred Stock are held for three years after their date ofissuance), together with any securities issued or issuable upon any stocksplit, dividend or other distribution recapitalization or similar event withrespect to the foregoing or in connection with any anti-dilution provisionsattached to the Preferred Stock and Warrants.

 

“Registration Statement” means theregistration statements required to be filed hereunder and any additionalregistration statements contemplated by Section 3(c), including (in each case)the Prospectus, amendments and supplements to such registration statement orProspectus, including pre- and post-effective amendments, all exhibits thereto,and all material incorporated by reference or deemed to be incorporated byreference in such registration statement.

 

“Rule 415” means Rule 415 promulgatedby the Commission pursuant to the Securities Act, as such Rule may be amendedfrom time to time, or any similar rule or regulation hereafter adopted by theCommission having substantially the same purpose and effect as such Rule.

 

“Rule 424” means Rule 424 promulgatedby the Commission pursuant to the Securities Act, as such Rule may be amendedfrom time to time, or any similar rule or regulation hereafter adopted by theCommission having substantially the same purpose and effect as such Rule.

 

“Warrants” shall mean the Common Stockpurchase warrants issued to the Purchasers pursuant to the Purchase Agreement.

 

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2. ShelfRegistration

 

(a)  On or prior to each FilingDate, the Company shall prepare and file with the Commission a “Shelf”Registration Statement covering the resale of 130% of the RegistrableSecurities on such Filing Date for an offering to be made on a continuous basispursuant to Rule 415.  The RegistrationStatement shall be on Form S-3 (unless the Company is not then eligible toregister for resale the Registrable Securities on Form S-3, in which case suchregistration shall be on another appropriate form in accordance herewith) andshall contain (unless otherwise directed by the Holders and except to theextent the Company determines that modifications thereto are required underapplicable law) substantially the “Plan of Distribution” attached hereto as AnnexA.  Subject to the terms of thisAgreement, the Company shall use its best efforts to cause the RegistrationStatement to be declared effective under the Securities Act as promptly aspossible after the filing thereof, but in any event prior to the applicableEffectiveness Date, and shall use its best efforts to keep such RegistrationStatement continuously effective under the Securities Act until the date whichis two years after the date that such Registration Statement is declaredeffective by the Commission or such earlier date when all RegistrableSecurities covered by such Registration Statement have been sold or may be soldwithout volume restrictions pursuant to Rule 144(k) as determined by thecounsel to the Company pursuant to a written opinion letter to such effect,addressed and acceptable to the Company’s transfer agent and the affectedHolders (the “Effectiveness Period”).

 

(b) If: (i) a Registration Statement is not filed on or prior to its FilingDate (if the Company files a Registration Statement without affording theHolders the opportunity to review and comment on the same as required bySection 3(a), the Company shall not be deemed to have satisfied clause (i)), or(ii) the Company fails to file with the Commission a request for accelerationin accordance with Rule 461 promulgated under the Securities Act, within fiveTrading Days of the date that the Company is notified (orally or in writing,whichever is earlier) by the Commission that a Registration Statement will notbe “reviewed,” or not subject to further review, or (iii) prior to itsEffectiveness Date, the Company fails to file a pre-effective amendment andotherwise respond in writing to comments made by the Commission in respect ofsuch Registration Statement within 15 Trading Days after the receipt ofcomments by or notice from the Commission that such amendment is required inorder for a Registration Statement to be declared effective, or (iv) aRegistration Statement filed or required to be filed hereunder is not declaredeffective by the Commission by its Effectiveness Date, or (v) after theEffectiveness Date, a Registration Statement ceases for any reason to remaincontinuously effective as to all Registrable Securities for which it is requiredto be effective, or the Holders are not permitted to utilize the Prospectustherein to resell such Registrable Securities for 5 consecutive Trading Days orin any individual case an aggregate of 15 Trading Days during any 12 monthperiod (which need not be consecutive Trading Days) (any such failure or breachbeing referred to as an “Event”, and for purposes of clause (i) or (iv)the date on which such Event occurs, or for purposes of clause (ii) the date onwhich such five Trading Day period is exceeded, or for purposes of clause (iii)the date which such 15 Trading Day period is exceeded, or for purposes ofclause (v) the date on which such 5 or 15 Trading Day period, as applicable, isexceeded

 

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being referred to as “EventDate”), then, on each such Event Date and every monthly anniversary thereofuntil the applicable Event is cured, the Company shall pay to each Holder anamount in cash, as liquidated damages and not as a penalty, equal to 2.0% permonth of (i) the Subscription Amount paid by such Holder pursuant to thePurchase Agreement for Securities then held by such Holder, and (ii) if theWarrants are “in the money” and then held by the Holder, the value of anyoutstanding Warrants (valued at the difference between the average VWAP duringthe applicable month and the Exercise Price multiplied by the number of sharesof Common Stock the Warrants are exercisable into).** **If the Company fails to pay any liquidated damages pursuantto this Section in full within seven days after the date payable, the Companywill pay interest thereon at a rate of 18% per annum (or such lesser maximumamount that is permitted to be paid by applicable law) to the Holder, accruingdaily from the date such liquidated damages are due until such amounts, plusall such interest thereon, are paid in full. The liquidated damages pursuant tothe terms hereof shall apply on a pro-rata basis for any portion of a monthprior to the cure of an Event.

 

3. Registration Procedures

 

In connectionwith the Company’s registration obligations hereunder, the Company shall:

 

(a) Not lessthan five Trading Days prior to the filing of each Registration Statement orany related Prospectus or any amendment or supplement thereto (excluding anydocument that would be incorporated or deemed incorporated therein byreference), the Company shall, (i) furnish to each Holder copies of all suchdocuments proposed to be filed, which documents (other than those incorporatedor deemed to be incorporated by reference) will be subject to the review ofsuch Holders, and (ii) cause its officers and directors, counsel andindependent certified public accountants to respond to such inquiries as shallbe necessary, in the reasonable opinion of respective counsel to conduct areasonable investigation within the meaning of the Securities Act. The Companyshall not file the Registration Statement or any such Prospectus or anyamendments or supplements thereto to which the Holders of a majority of theRegistrable Securities shall reasonably and in good faith object, provided, theCompany is notified of such objection in writing no later than 5 Trading Daysafter the Holders have been so furnished copies of such documents.

 

(b) (i)Prepare and file with the Commission such amendments, including post-effectiveamendments, to a Registration Statement and the Prospectus used in connectiontherewith as may be necessary to keep a Registration Statement continuouslyeffective as to the applicable Registrable Securities for the EffectivenessPeriod and prepare and file with the Commission such additional RegistrationStatements in order to register for resale under the Securities Act all of theRegistrable Securities; (ii) cause the related Prospectus to be amended orsupplemented by any required Prospectus supplement (subject to the terms ofthis Agreement), and as so supplemented or amended to be filed pursuant to Rule424; (iii) respond as promptly as reasonably possible, and in any event within15 Trading Days, to any comments received from the Commission with respect to

 

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a Registration Statement or anyamendment thereto and as promptly as reasonably possible provide the Holderstrue and complete copies of all correspondence from and to the Commissionrelating to a Registration Statement; and (iv) comply in all material respectswith the provisions of the Securities Act and the Exchange Act with respect tothe disposition of all Registrable Securities covered by a Registration Statementduring the applicable period in accordance (subject to the terms of thisAgreement) with the intended methods of disposition by the Holders thereof setforth in such Registration Statement as so amended or in such Prospectus as sosupplemented.

 

(c)  If during the Effectiveness Period, thenumber of Registrable Securities at any time exceeds 90% of the number ofshares of Common Stock then registered in a Registration Statement, then theCompany shall file as soon as reasonably practicable but in any case prior tothe applicable Filing Date, an additional Registration Statement covering theresale of by the Holders of not less than 130% of the number of suchRegistrable Securities.

 

(d) Notify theHolders of Registrable Securities to be sold (which notice shall, pursuant toclauses (ii) through (vi) hereof shall be accompanied by an instruction tosuspend the use of the Prospectus until the requisite changes have been made)as promptly as reasonably possible (and, in the case of (i)(A) below, not lessthan five Trading Days prior to such filing) and (if requested by any suchPerson) confirm such notice in writing no later than one Trading Day followingthe day (i)(A) when a Prospectus or any Prospectus supplement or post-effectiveamendment to a Registration Statement is proposed to be filed; (B) when theCommission notifies the Company whether there will be a “review” of suchRegistration Statement and whenever the Commission comments in writing on suchRegistration Statement (the Company shall provide true and complete copiesthereof and all written responses thereto to each of the Holders); and (C) withrespect to a Registration Statement or any post-effective amendment, when thesame has become effective; (ii) of any request by the Commission or any other Federalor state governmental authority for amendments or supplements to a RegistrationStatement or Prospectus or for additional information; (iii) of the issuance bythe Commission of any stop order suspending the effectiveness of a RegistrationStatement covering any or all of the Registrable Securities or the initiationof any Proceedings for that purpose; (iv) of the receipt by the Company of anynotification with respect to the suspension of the qualification or exemptionfrom qualification of any of the Registrable Securities for sale in anyjurisdiction, or the initiation or threatening of any Proceeding for suchpurpose; (v) of the occurrence of any event or passage of time that makes thefinancial statements included in a Registration Statement ineligible forinclusion therein or any statement made in a Registration Statement orProspectus or any document incorporated or deemed to be incorporated therein byreference untrue in any material respect or that requires any revisions to aRegistration Statement, Prospectus or other documents so that, in the case of aRegistration Statement or the Prospectus, as the case may be, it will notcontain any untrue statement of a material fact or omit to state any materialfact required to be stated therein or necessary to make the statements therein,in light of the circumstances under which they were made, not misleading; and(vi) the occurrence or existence of any pending corporate development withrespect to the

 

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Company that the Companybelieves may be material and that, in the determination of the Company, makesit not in the best interests of the Company to allow continued availability orthe Registration Statement or Prospectus.

 

(e) Promptlydeliver to each Holder, without charge, as many copies of the Prospectus orProspectuses (including each form of prospectus) and each amendment orsupplement thereto as such Persons may reasonably request. Subject to the termsof this Agreement, the Company hereby consents to the use of such Prospectusand each amendment or supplement thereto by each of the selling Holders inconnection with the offering and sale of the Registrable Securities covered bysuch Prospectus and any amendment or supplement thereto.

 

(f) Use commerciallyreasonable efforts to register or qualify the resale of such RegistrableSecurities as required under applicable securities or Blue Sky laws of eachState within the United States as any Holder requests in writing, to keep eachsuch registration or qualification (or exemption therefrom) effective duringthe Effectiveness Period; provided, that the Company shall not be required toqualify generally to do business in any jurisdiction where it is not then soqualified or subject the Company to any material tax in any such jurisdictionwhere it is not then so subject.

 

(g) Cooperatewith the Holders to facilitate the timely preparation and delivery ofcertificates representing Registrable Securities to be delivered to atransferee pursuant to a Registration Statement, which certificates shall befree, to the extent permitted by the Purchase Agreement, of all restrictivelegends, and to enable such Registrable Securities to be in such denominationsand registered in such names as any such Holders may request.

 

(h) Upon theoccurrence of any event contemplated this Section 3, as promptly as reasonablypossible, prepare a supplement or amendment, including a post-effectiveamendment, to a Registration Statement or a supplement to the relatedProspectus or any document incorporated or deemed to be incorporated therein byreference, and file any other required document so that, as thereafterdelivered, neither a Registration Statement nor such Prospectus will contain anuntrue statement of a material fact or omit to state a material fact requiredto be stated therein or necessary to make the statements therein, in light ofthe circumstances under which they were made, not misleading. If the Companynotifies the Holders in accordance with clauses (ii) through (vi) of Section3(d) above to suspend the use of the use of any Prospectus until the requisitechanges to such Prospectus have been made, or the Company otherwise notifiesthe Holders of its election to suspend the availability of a RegistrationStatement and Prospectus pursuant to clause (vi) of Section 3(d), then theHolders shall suspend use of such Prospectus. The Company will use its best efforts to ensure that the use of theProspectus may be resumed as promptly as is practicable, except that in the caseof suspension of the availability of a Registration Statement and Prospectuspursuant to clause (vi) of Section 3(d), the Company shall not be required totake such action until such time as it shall determine that the continuedavailability of the Registration Statement and Prospectus is no longer not inthe best interests of the Company.

 

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(i)            Comply with all applicable rules andregulations of the Commission.

 

## **(j)            Use its bestefforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i)any order suspending the effectiveness of a Registration Statement, or (ii) anysuspension of the qualification (or exemption from qualification) of any of theRegistrable Securities for sale in any jurisdiction, at the earliestpracticable moment.**

 

(k)           The Company may require, at any timeprior to the third Trading Day prior to the Filing Date, each Holder to furnishto the Company a statement as to the number of shares of Common Stockbeneficially owned by such Holder and, if requested by the Commission, thecontrolling person thereof, within three Trading days of the Company’srequest.  During any periods that theCompany is unable to meet its obligations hereunder with respect to theregistration of the Registrable Securities solely because any Holder fails tofurnish such information within three Trading Days of the Company’s request,any liquidated damages that are accruing at such time shall be tolled  until such information is delivered to theCompany.

 

4. RegistrationExpenses. All fees and expenses incident to the performance of orcompliance with this Agreement by the Company shall be borne by the Companywhether or not any Registrable Securities are sold pursuant to the RegistrationStatement. The fees and expenses referred to in the foregoing sentence shallinclude, without limitation, (i) all registration and filing fees (including,without limitation, fees and expenses (A) with respect to filings required tobe made with the Principal Market on which the Common Stock is then listed fortrading, and (B) in compliance with applicable state securities or Blue Skylaws (including, without limitation, fees and disbursements of counsel for theCompany in connection with Blue Sky qualifications or exemptions of theRegistrable Securities and determination of the eligibility of the RegistrableSecurities for investment under the laws of such jurisdictions as requested bythe Holders )), (ii) printing expenses (including, without limitation, expensesof printing certificates for Registrable Securities and of printingprospectuses requested by the Holders), (iii) messenger, telephone and deliveryexpenses, (iv) fees and disbursements of counsel for the Company, and (v) feesand expenses of all other Persons retained by the Company in connection withthe consummation of the transactions contemplated by this Agreement.  In addition, the Company shall beresponsible for all of its internal expenses incurred in connection with theconsummation of the transactions contemplated by this Agreement (including,without limitation, all salaries and expenses of its officers and employeesperforming legal or accounting duties), the expense of any annual audit and thefees and expenses incurred in connection with the listing of the RegistrableSecurities on any securities exchange as required hereunder. In no event shallthe Company be responsible for any broker or similar commissions or, except tothe extent provided for in the Transaction Documents, any legal fees or othercosts of the Holders.

 

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5. Indemnification

 

(a) *Indemnificationby the Company*. The Company shall, notwithstanding any terminationof this Agreement, indemnify and hold harmless each Holder, the officers,directors, agents, brokers (including brokers who offer and sell RegistrableSecurities as principal as a result of a pledge or any failure to perform undera margin call of Common Stock), investment advisors and employees of each ofthem, each Person who controls any such Holder (within the meaning of Section15 of the Securities Act or Section 20 of the Exchange Act) and the officers,directors, agents and employees of each such controlling Person, to the fullestextent permitted by applicable law, from and against any and all losses,claims, damages, liabilities, costs (including, without limitation, costs ofpreparation and reasonable attorneys’ fees) and expenses (collectively,“Losses”), as incurred, arising out of or relating to any untrue or allegeduntrue statement of a material fact contained in a Registration Statement, anyProspectus or any form of prospectus or in any amendment or supplement theretoor in any preliminary prospectus, or arising out of or relating to any omissionor alleged omission of a material fact required to be stated therein ornecessary to make the statements therein (in the case of any Prospectus or formof prospectus or supplement thereto, in light of the circumstances under whichthey were made) not misleading, except to the extent, but only to the extent,that (1) such untrue statements or omissions or alleged untrue statements oromissions are based upon information regarding such Holder furnished in writingto the Company by such Holder expressly for use therein, or to the extent thatsuch information relates to such Holder or such Holder’s proposed method ofdistribution of Registrable Securities and was reviewed and expressly approvedin writing by such Holder expressly for use in a Registration Statement, such Prospectusor such form of Prospectus or in any amendment or supplement thereto or (2) inthe case of an occurrence of an event of the type specified in Section3(d)(ii)-(vi), the use by such Holder of an outdated or defective Prospectusafter the Company has notified such Holder in writing that the Prospectus isoutdated or defective and prior to the receipt by such Holder of the Advicecontemplated in Section 6(e). The Company shall notify the Holders promptly ofthe institution, threat or assertion of any Proceeding arising from or inconnection with the transactions contemplated by this Agreement of which theCompany is aware.

 

(b) *Indemnificationby Holders*. Each Holder shall, severally and not jointly, indemnifyand hold harmless the Company, its directors, officers, agents and employees,each Person who controls the Company (within the meaning of Section 15 of theSecurities Act and Section 20 of the Exchange Act), and the directors,officers, agents or employees of such controlling Persons, to the fullestextent permitted by applicable law, from and against all Losses (as determinedby a court of competent jurisdiction in a final judgment not subject to appealor review) arising out of or based upon any untrue statement of a material factcontained in any Registration Statement, any Prospectus, or any form ofprospectus, or in any amendment or supplement thereto, or arising out of orbased upon: (i) such Holder’s failure to comply with the prospectus deliveryrequirements of the Securities Act or (ii) any omission of a material factrequired to be stated therein or necessary to make the statements therein notmisleading to the extent, but only to the extent, such untrue statement oromission is contained in any information so furnished in writing by such Holderto the Company specifically for inclusion in such Registration Statement orsuch Prospectus or to the extent that (1) such untrue statements or omissions

 

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are based upon informationregarding such Holder furnished in writing to the Company by such Holderexpressly for use therein, or to the extent such information relates to suchHolder or such Holder’s proposed method of distribution of RegistrableSecurities and was reviewed and expressly approved in writing by such Holderexpressly for use in the Registration Statement, such Prospectus or such formof Prospectus or in any amendment or supplement thereto or (2) in the case ofan occurrence of an event of the type specified in Section 3(d)(ii)-(vi), theuse by such Holder of an outdated or defective Prospectus after the Company hasnotified such Holder in writing that the Prospectus is outdated or defectiveand prior to the receipt by such Holder of the Advice contemplated in Section6(e). In no event shall the liability of any selling Holder hereunder begreater in amount than the dollar amount of the net proceeds received by suchHolder upon the sale of the Registrable Securities giving rise to suchindemnification obligation.

 

(c) *Conduct ofIndemnification Proceedings*. If any Proceeding shall be brought orasserted against any Person entitled to indemnity hereunder (an “IndemnifiedParty”), such Indemnified Party shall promptly notify the Person from whomindemnity is sought (the “Indemnifying Party”) in writing, and the IndemnifyingParty shall assume the defense thereof, including the employment of counselreasonably satisfactory to the Indemnified Party and the payment of all feesand expenses incurred in connection with defense thereof; provided, that thefailure of any Indemnified Party to give such notice shall not relieve theIndemnifying Party of its obligations or liabilities pursuant to thisAgreement, except (and only) to the extent that such failure shall haveprejudiced the Indemnifying Party.

 

An IndemnifiedParty shall have the right to employ separate counsel in any such Proceedingand to participate in the defense thereof, but the fees and expenses of suchcounsel shall be at the expense of such Indemnified Party or Parties unless:(1) the Indemnifying Party has agreed in writing to pay such fees and expenses;or (2) the Indemnifying Party shall have failed promptly to assume the defenseof such Proceeding and to employ counsel reasonably satisfactory to suchIndemnified Party in any such Proceeding; or (3) the named parties to any suchProceeding (including any impleaded parties) include both such IndemnifiedParty and the Indemnifying Party, and such Indemnified Party shall have beenadvised by counsel that a material conflict of interest is likely to exist ifthe same counsel were to represent such Indemnified Party and the IndemnifyingParty (in which case, if such Indemnified Party notifies the Indemnifying Partyin writing that it elects to employ separate counsel at the expense of theIndemnifying Party, the Indemnifying Party shall not have the right to assumethe defense thereof and the expense of one such counsel for each Holder shallbe at the expense of the Indemnifying Party). The Indemnifying Party shall notbe liable for any settlement of any such Proceeding effected without itswritten consent, which consent shall not be unreasonably withheld. NoIndemnifying Party shall, without the prior written consent of the IndemnifiedParty, effect any settlement of any pending Proceeding in respect of which anyIndemnified Party is a party, unless such settlement includes an unconditionalrelease of such Indemnified Party from all liability on claims that are thesubject matter of such Proceeding.

 

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Subject to theterms of this Agreement, all fees and expenses of the Indemnified Party(including reasonable fees and expenses to the extent incurred in connectionwith investigating or preparing to defend such Proceeding in a manner not inconsistentwith this Section) shall be paid to the Indemnified Party, as incurred, withinten Trading Days of written notice thereof to the Indemnifying Party(regardless of whether it is ultimately determined that an Indemnified Party isnot entitled to indemnification hereunder; provided, that the IndemnifyingParty may require such Indemnified Party to undertake to reimburse all suchfees and expenses to the extent it is finally judicially determined that suchIndemnified Party is not entitled to indemnification hereunder).

 

(d) *Contribution*.If a claim for indemnification under Section 5(a) or 5(b) is unavailable to anIndemnified Party (by reason of public policy or otherwise), then eachIndemnifying Party, in lieu of indemnifying such Indemnified Party, shallcontribute to the amount paid or payable by such Indemnified Party as a resultof such Losses, in such proportion as is appropriate to reflect the relativefault of the Indemnifying Party and Indemnified Party in connection with theactions, statements or omissions that resulted in such Losses as well as anyother relevant equitable considerations. The relative fault of such Indemnifying Party and Indemnified Partyshall be determined by reference to, among other things, whether any action inquestion, including any untrue or alleged untrue statement of a material factor omission or alleged omission of a material fact, has been taken or made by,or relates to information supplied by, such Indemnifying Party or IndemnifiedParty, and the parties’ relative intent, knowledge, access to information andopportunity to correct or prevent such action, statement or omission. Theamount paid or payable by a party as a result of any Losses shall be deemed toinclude, subject to the limitations set forth in Section 5(c), any reasonableattorneys’ or other reasonable fees or expenses incurred by such party inconnection with any Proceeding to the extent such party would have beenindemnified for such fees or expenses if the indemnification provided for inthis Section was available to such party in accordance with its terms.

 

The partieshereto agree that it would not be just and equitable if contribution pursuantto this Section 5(d) were determined by pro rata allocation or by any othermethod of allocation that does not take into account the equitableconsiderations referred to in the immediately preceding paragraph.  Notwithstanding the provisions of thisSection 5(d), no Holder shall be required to contribute, in the aggregate, anyamount in excess of the amount by which the proceeds actually received by suchHolder from the sale of the Registrable Securities subject to the Proceedingexceeds the amount of any damages that such Holder has otherwise been requiredto pay by reason of such untrue or alleged untrue statement or omission oralleged omission.

 

The indemnityand contribution agreements contained in this Section are in addition to anyliability that the Indemnifying Parties may have to the Indemnified Parties.

 

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6. Miscellaneous

 

(a) *Amendmentsand Waivers*. The provisions of this Agreement, including theprovisions of this sentence, may not be amended, modified or supplemented, andwaivers or consents to departures from the provisions hereof may not be given,unless the same shall be in writing and signed by the Company and all of theHolders of the then outstanding Registrable Securities. Notwithstanding theforegoing, a waiver or consent to depart from the provisions hereof withrespect to a matter that relates exclusively to the rights of Holders and thatdoes not directly or indirectly affect the rights of other Holders may be givenby Holders of all of the Registrable Securities to which such waiver or consentrelates; provided, however, that the provisions of this sentencemay not be amended, modified, or supplemented except in accordance with theprovisions of the immediately preceding sentence.

 

(b) *NoInconsistent Agreements*. Neither the Company nor any of itssubsidiaries has entered, as of the date hereof, nor shall the Company or anyof its subsidiaries, on or after the date of this Agreement, enter into anyagreement with respect to its securities, that would have the effect ofimpairing the rights granted to the Holders in this Agreement or otherwiseconflicts with the provisions hereof. Except as and to the extent specified inSchedule 6(b) hereto, neither the Company nor any of its subsidiaries haspreviously entered into any agreement granting any registration rights withrespect to any of its securities to any Person that have not been satisfied infull.

 

(c) *No Piggybackon Registrations*. Except as and to the extent specified in Schedule6(c) hereto, neither the Company nor any of its security holders (other thanthe Holders in such capacity pursuant hereto) may include securities of theCompany in the Registration Statement other than the Registrable Securities,and the Company shall not after the date hereof enter into any agreementproviding any such right to any of its security holders.

 

(d) *Compliance*.Each Holder covenants and agrees that it will comply with the prospectusdelivery requirements of the Securities Act as applicable to it in connectionwith sales of Registrable Securities pursuant to the Registration Statement.

 

(e) *DiscontinuedDisposition*. Each Holder agrees by its acquisition of suchRegistrable Securities that, upon receipt of a notice from the Company of theoccurrence of any event of the kind described in Sections 3(d)(ii), (iii) or(vi), such Holder will forthwith discontinue disposition of such RegistrableSecurities under a Registration Statement until such Holder’s receipt of thecopies of the supplemented Prospectus and/or amended Registration Statementcontemplated by Section 3(h), or until it is advised in writing (the “Advice”)by the Company that the use of the applicable Prospectus may be resumed, and,in either case, has received copies of any additional or supplemental filingsthat are incorporated or deemed to be incorporated by reference in suchProspectus or Registration Statement. The Company may provide appropriate stoporders to enforce the provisions of this paragraph. The Company agrees andacknowledges that any periods during which the Holder is required todiscontinue the disposition of the Registrable Securities hereunder shall besubject to the provisions of Section 2(c).

 

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(f) *Piggy-BackRegistrations*. If at any time during the Effectiveness Period thereis not an effective Registration Statement covering all of the RegistrableSecurities and the Company shall determine to prepare and file with theCommission a registration statement relating to an offering for its own accountor the account of others under the Securities Act of any of its equity securities,other than on Form S-4 or Form S-8 (each as promulgated under the SecuritiesAct) or their then equivalents relating to equity securities to be issuedsolely in connection with any acquisition of any entity or business or equitysecurities issuable in connection with stock option or other employee benefitplans, then the Company shall send to each Holder written notice of suchdetermination and, if within fifteen days after receipt of such notice, anysuch Holder shall so request in writing, the Company shall include in suchregistration statement all or any part of such Registrable Securities suchholder requests to be registered; provided, that, the Company shall not berequired to register any Registrable Securities pursuant to this Section 6(f)that are eligible for resale pursuant to Rule 144(k) promulgated under theSecurities Act.

 

(g) *Notices*.Any and all notices or other communications or deliveries required or permittedto be provided hereunder shall be delivered as set forth in the PurchaseAgreement.

 

(h) *Successorsand Assigns*. This Agreement shall inure to the benefit of and bebinding upon the successors and permitted assigns of each of the parties andshall inure to the benefit of each Holder. The Company may not assign itsrights or obligations hereunder without the prior written consent of all of theHolders of the then-outstanding Registrable Securities. Each Holder may assigntheir respective rights hereunder in the manner and to the Persons as permittedunder the Purchase Agreement.

 

(i) *Counterparts*.This Agreement may be executed in any number of counterparts, each of whichwhen so executed shall be deemed to be an original and, all of which takentogether shall constitute one and the same Agreement. In the event that anysignature is delivered by facsimile transmission, such signature shall create avalid binding obligation of the party executing (or on whose behalf suchsignature is executed) the same with the same force and effect as if suchfacsimile signature were the original thereof.

 

(j) *GoverningLaw*. All questions concerning the construction, validity,enforcement and interpretation of this Agreement shall be governed by andconstrued and enforced in accordance with the internal laws of the State of NewYork, without regard to the principles of conflicts of law thereof. Each partyhereby irrevocably submits to the exclusive jurisdiction of the state andfederal courts sitting in the City of New York, borough of Manhattan, for theadjudication of any dispute hereunder or in connection herewith or with anytransaction contemplated hereby or discussed herein, and hereby irrevocablywaives, and agrees not to assert in any suit, action or proceeding, any claimthat it is not personally subject to the jurisdiction of any such court, thatsuch suit, action or proceeding is improper. Each party hereby irrevocablywaives personal service of process and consents to process being served in anysuch suit, action or proceeding by mailing a copy thereof to such party at theaddress in effect for notices to it under this

 

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Agreement and agrees that suchservice shall constitute good and sufficient service of process and noticethereof. Nothing contained herein shall be deemed to limit in any way any rightto serve process in any manner permitted by law.  Each party hereto hereby irrevocably waives, to the fullestextent permitted by applicable law, any and all right to trial by jury in anylegal proceeding arising out of or relating to this Agreement or thetransactions contemplated hereby. If either party shall commence a Proceedingto enforce any provisions of this Agreement, then the prevailing party in suchProceeding shall be reimbursed by the other party for its attorneys fees and othercosts and expenses incurred with the investigation, preparation and prosecutionof such Proceeding.

 

(k) *CumulativeRemedies*. The remedies provided herein are cumulative and notexclusive of any remedies provided by law.

 

(l) *Severability*.If any term, provision, covenant or restriction of this Agreement is held by acourt of competent jurisdiction to be invalid, illegal, void or unenforceable,the remainder of the terms, provisions, covenants and restrictions set forthherein shall remain in full force and effect and shall in no way be affected,impaired or invalidated, and the parties hereto shall use their reasonableefforts to find and employ an alternative means to achieve the same orsubstantially the same result as that contemplated by such term, provision,covenant or restriction. It is hereby stipulated and declared to be theintention of the parties that they would have executed the remaining terms,provisions, covenants and restrictions without including any of such that maybe hereafter declared invalid, illegal, void or unenforceable.

 

(m) *Headings*.The headings in this Agreement are for convenience of reference only and shallnot limit or otherwise affect the meaning hereof.

 

(n) *IndependentNature of Purchasers’ Obligations and Rights*. The obligations ofeach Purchaser hereunder is several and not joint with the obligations of anyother Purchaser hereunder, and no Purchaser shall be responsible in any way forthe performance of the obligations of any other Purchaser hereunder. Nothingcontained herein or in any other agreement or document delivered at anyclosing, and no action taken by any Purchaser pursuant hereto or thereto, shallbe deemed to constitute the Purchasers as a partnership, an association, ajoint venture or any other kind of entity, or create a presumption that thePurchasers are in any way acting in concert with respect to such obligations orthe transactions contemplated by this Agreement. Each Purchaser shall beentitled to protect and enforce its rights, including without limitation therights arising out of this Agreement, and it shall not be necessary for anyother Purchaser to be joined as an additional party in any proceeding for suchpurpose.

 

********************

 

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IN WITNESSWHEREOF, the parties have executed this Registration Rights Agreement as of thedate first written above.

 

 
|                                | **U.S. RESTAURANT  PROPERTIES, INC.** |   |
|-------------------------------------|---------------------------------------|--------|
|                                |                                  |
|                                |                                  |
|                                | By:                                   |   |   |
|                                |                                  | Name:  |
|                                |                                  | Title: |
|                                |                                  |   |
| [SIGNATURE PAGE OF HOLDERS FOLLOWS] |
|                                     |                                       |        |  |

 

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[PURCHASER’S SIGNATURE PAGE TO RRA]

 
| **OMICRON MASTER  TRUST** |                                      |
|---------------------------|-------------------------------------------|
| By:                       | Omicron Capital L.P., as subadvisor       |   |
| By:                       | Omicron Capital Inc., its general partner |   |
|                      |
| By:                       |                                      |   |
|                      | Name:                                     |
|                      | Title:                                    |
|                           |                                           |  |  |  |  |

 

 

[ADDITIONAL PURCHASER SIGNATURES FOLLOW]

 

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[PURCHASER’S RRA SIGNATURE PAGE]

 
| **RIVERVIEW GROUP,  LLC** |
|---------------------------|
|                      |
|                      |
| By:                       |   |   |
| Name:                     |
| Title:                    |

 

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**Plan ofDistribution**

 

The sellingstockholders and any of their pledgees, assignees and successors-in-interestmay, from time to time, sell any or all of their shares of common stock on anystock exchange, market or trading facility on which the shares are traded or inprivate transactions.  These sales maybe at fixed or negotiated prices.  Theselling stockholders may use any one or more of the following methods whenselling shares:

 

•                  ordinary brokerage transactions andtransactions in which the broker-dealer solicits purchasers;

 

•                  block trades in which thebroker-dealer will attempt to sell the shares as agent but may position andresell a portion of the block as principal to facilitate the transaction;

 

•                  purchases by a broker-dealer asprincipal and resale by the broker-dealer for its account;

 

•                  an exchange distribution in accordancewith the rules of the applicable exchange;

 

•                  privately negotiated transactions;

 

•                  settlement of short sales

 

•                  broker-dealers may agree with theselling stockholders to sell a specified number of such shares at a stipulatedprice per share;

 

•                  a combination of any such methods ofsale; and

 

•                  any other method permitted pursuantto applicable law.

 

The selling stockholders may also sell shares under Rule 144 under theSecurities Act, if available, rather than under this prospectus.  Broker-dealers engaged by the sellingstockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the sellingstockholders (or, if any broker-dealer acts as agent for the purchaser of shares,from the purchaser) in amounts to be negotiated.  The selling stockholders do not expect these commissions anddiscounts to exceed what is customary in the types of transactions involved.

 

The selling stockholder may from time to time pledgeor grant a security interest in some or all of the Shares or common stock orWarrant owned by them and, if they default in the performance of their securedobligations, the pledgees or secured parties may offer and sell the shares ofcommon stock from time to time under this prospectus, or under an amendment tothis prospectus under Rule 424(b)(3) or other applicable provision of theSecurities Act of 1933 amending the list of selling stockholders to

 

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include the pledgee, transfereeor other successors in interest as selling stockholders under this prospectus.

 

The selling stockholders also may transfer the sharesof common stock in other circumstances, in which case the transferees, pledgeesor other successors in interest will be the selling beneficial owners forpurposes of this prospectus.

 

The selling stockholders and any broker-dealers oragents that are involved in selling the shares may be deemed to be“underwriters” within the meaning of the Securities Act in connection with suchsales.  In such event, any commissionsreceived by such broker-dealers or agents and any profit on the resale of theshares purchased by them may be deemed to be underwriting commissions ordiscounts under the Securities Act.  Theselling stockholders have informed the Company that none of them have anyagreement or understanding, directly or indirectly, with any person todistribute the common stock.

 

The Company is required to pay all fees and expensesincurred by the Company incident to the registration of the shares.  The Company has agreed to indemnify theselling stockholders against certain losses, claims, damages and liabilities,including liabilities under the Securities Act.

 

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