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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1999
COMMISSION FILE NUMBER 1-13089
U.S. RESTAURANT PROPERTIES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
MARYLAND 75-2687420
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
12240 INWOOD RD., SUITE 200, DALLAS, TEXAS 75244
(Address of principal executive offices, including zip code)
972-387-1487
(Registrant's telephone number, including area code)
Securities Registered Pursuant to Section 12(b) of the Act:
<TABLE>
<CAPTION>
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH REGISTERED
------------------- -----------------------------------------
<S> <C>
Common Stock, par value $0.001 per share New York Stock Exchange
$1.93 Series A Cumulative Convertible Preferred New York Stock Exchange
Stock
</TABLE>
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
The aggregate market value of the Common Stock (based upon the closing
price of the Common Stock on March 15, 2000, on the New York Stock Exchange)
held by non-affiliates of the Registrant was $198,015,298.
As of March 15, 2000, there were 15,379,829 shares outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Certain information in the Registrant's definitive proxy statement to be
filed with the Securities and Exchange Commission related to the Company's 1999
Annual Meeting of Stockholders is incorporated by reference in Part III hereof.
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U.S. RESTAURANT PROPERTIES, INC.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C> <C>
PART I
Item 1. Business.................................................... 1
Item 2. Properties.................................................. 6
Item 3. Legal Proceedings........................................... 8
Item 4. Submission of Matters to a Vote of Security-Holders......... 8
PART II
Item 5. Market for Registrant's Common Equity and Related
Stockholder Matters......................................... 9
Item 6. Selected Financial Data..................................... 10
Item 7. Management's Discussion and Analysis of Financial Condition
and Results of Operations................................... 11
Item 7A. Quantitative and Qualitative Disclosures About Market
Risk........................................................ 17
Item 8. Financial Statements and Supplementary Data................. 18
Item 9. Changes in and Disagreements with Accountants on Accounting
and Financial Disclosure.................................... 18
PART III
Item 10. Directors and Executive Officers of the Registrant.......... 18
Item 11. Executive Compensation...................................... 18
Item 12. Security Ownership of Certain Beneficial Owners and
Management.................................................. 18
Item 13. Certain Relationships and Related Transactions.............. 18
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form
8-K......................................................... 18
</TABLE>
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PART I
ITEM 1. BUSINESS
GENERAL
U.S. Restaurant Properties, Inc. (the "Company"), a fully integrated,
self-administered real estate investment trust ("REIT"), is one of the largest
publicly-traded entities in the United States that is dedicated to acquiring,
owning, managing and selectively developing restaurant, service station and
other service retail properties. At December 31, 1999, the Company's portfolio
consisted of 934 core business properties (the "Properties") diversified
geographically in 48 states and operated by approximately 320 operators. In
addition, the Company also held 8 billboard properties, one office building and
one fuel terminal facility. The Properties are leased by the Company on a triple
net basis primarily to operators of fast food and casual dining chain
restaurants affiliated with major brands such as Burger King(R), Arby's(R),
Dairy Queen(R), Hardee's(R), Chili's(R), Pizza Hut(R) and Schlotzsky's(R) and
regional franchises such as Grandy's(R) and Taco Cabana(R), and to gasoline
service station operators affiliated with major brands such as Shell(R),
Texaco(R) and Arco(R). As of December 31, 1999, over 97% of the Properties were
leased pursuant to leases with average remaining lease terms (excluding
extension options) in excess of thirteen years.
The Company is a Maryland corporation which made an election to be taxed as
a REIT for federal income tax purposes commencing with its taxable year ended
December 31, 1997. Both the common stock, par value $.001 per share (the "Common
Stock"), and the $1.93 Series A Cumulative Convertible Preferred Stock, par
value $.001 per share (the "Preferred Stock"), of the Company are traded on the
New York Stock Exchange under the symbols "USV" and "USV pA," respectively. The
principal executive offices of the Company are located at 12440 Inwood Road,
Suite 200, Dallas, Texas 75244. The telephone number is (972) 387-1487.
HISTORY AND STRUCTURE OF THE COMPANY
The Company's predecessor, U.S. Restaurant Properties Master LP ("USRP"),
formerly Burger King Investors Master L.P. and U.S. Restaurant Properties
Operating L.P. (the "Operating Partnership"), formerly Burger King Operating
L.P., were formed in 1985 by Burger King Corporation ("BKC") and QSV Properties,
Inc. ("QSV"), both of which were at that time wholly-owned subsidiaries of The
Pillsbury Company. QSV acted as the general partner of USRP and the Operating
Partnership. BKC was a special general partner of USRP until its withdrawal on
November 30, 1994. USRP effected an initial public offering in 1986 and the
proceeds therefrom were used to buy the Company's initial portfolio of 128
properties from BKC. From 1986 through March 1995, the partnership agreement
governing USRP limited the activities of the Company to managing the original
portfolio of properties.
In May 1994, new management assumed control of the Company and began
implementing a number of new strategies intended to pursue Company growth. These
strategies have involved the Company in, among other things, acquiring new
properties, enhancing investment returns through merchant banking activities and
developing new co-branded service centers on a selective basis. From May 1994
through December 31, 1999, the Company has increased the number of core business
properties owned or managed from 123 to 934.
On October 15, 1997, the Company effected the conversion of USRP into a
self-administered REIT. The conversion was effected through the merger (the
"Merger") of USRP Acquisition, L.P., a partnership subsidiary of the Company,
with and into USRP. As a result of the Merger, USRP became a subsidiary of the
Company and, at the effective time of the Merger, all holders of units of
beneficial interest (the "Units") of USRP became stockholders of the Company. On
October 16, 1997, the Common Stock, in replacement of the Units, commenced
trading on the NYSE under the symbol "USV." In connection with the Conversion,
QSV withdrew as general partner of USRP and the Operating Partnership, effective
as of October 15, 1997, and USRP Managing, Inc., a wholly-owned subsidiary of
the Company, was substituted as the general partner for USRP and the Operating
Partnership. In exchange for its interests in USRP and the Operating Partnership
and the termination of its management contract, QSV received 126,582 shares of
Common Stock and 1,148,418 units of beneficial interest in the Operating
Partnership ("Operating Partnership Units"), which are
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exchangeable at any time for shares of Common Stock on a one-for-one basis, and
the right to receive up to 825,000 additional Operating Partnership Units or
shares of Common Stock in 2001 if certain earnings targets are met for the year
2000. The earnings targets are based upon what QSV would have received under
their prior management contract which relates primarily to the volume of
property transactions. As of December 31, 1999, all of the 825,000 contingent
units had been earned. The fair value of these units are included in minority
interest at December 31, 1999.
DIVERSIFICATION
The Company conducts its operations in such a manner as to enhance the
predictability and sustainability of its cash flows. The operating performance
of the Properties and the Company's financial position are enhanced by
diversifying its portfolio by geographic location and number of tenants. The
Company believes that geographic diversification minimizes the effects on the
Company's financial position of downturns in regional and local economics. The
Properties are further diversified by the number of tenants. At December 31,
1999, only one tenant accounts for over 6% of the Company's properties. Sybra,
Inc., accounted for 8% of the Company's minimum base rental revenues for the
year ended December 31, 1999.
LEASES WITH RESTAURANT AND SERVICE STATION OPERATORS
The Company's strategy is to acquire operating properties (primarily
restaurants and service stations) rather than developing new restaurant
properties, although the Company has begun to acquire newly constructed
properties and to selectively develop properties. Typically, the Company
acquires a property that has been operated as a fast food or casual dining
restaurant and that is subject to a lease with a remaining term of five to 20
years and a co-terminus franchise agreement. The Company believes that this
strategy reduces the Company's financial risk because the restaurant operated on
such property has a proven operating record that mitigates the risk of default
or non-renewal under the lease.
Substantially all of the Company's existing leases are "triple net." Triple
net leases typically require the tenants to be responsible for the property
operating costs, including property taxes, insurance and maintenance. A majority
of the Company's leases provide for a base rent plus a percentage of the
property's sales in excess of a threshold amount. The triple net lease structure
is designed to provide the Company with a consistent stream of income without
the obligation to reinvest in the property. For the twelve months ended December
31, 1999, base rental revenues and percentage rental revenues represented 92%
and 8%, respectively, of total gross rental revenues.
The Company has implemented an early renewal program pursuant to which the
Company offers remodeling financing to tenants in consideration for renewing and
restructuring leases. Through March 15, 2000, the Company has renewed 88 leases
under this program, with an aggregate of approximately $3 million paid out by
the Company for remodeling. The Company considers the remodeling financing to be
prudent given the increased sales resulting at the remodeled restaurants and the
lower costs incurred because of the early lease renewals. The early renewal
program has resulted in an increase of the average remaining lease term of the
Properties to over thirteen years, thus mitigating the risk of non-renewal of
leases.
The Company generally acquires properties from third-party lessors or from
operators in sale/leaseback transactions in which the operator sells the
property to the Company and then enters into a long-term lease (typically 20
years) with the Company for such property. A sale/leaseback transaction is
attractive to the operator because it allows the operator to realize the value
of the real estate while retaining occupancy for the long term. A sale/leaseback
transaction may also provide specific accounting, earnings and market value
benefits to the selling operator. For example, the lease on the property may be
structured by the tenant as an off-balance sheet operating lease, consistent
with Financial Accounting Standards Board rules, which may
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increase the operator's earnings, net worth and borrowing capacity. The
following table sets forth certain information regarding lease expirations for
the Properties.
LEASE EXPIRATION SCHEDULE(1)
<TABLE>
<CAPTION>
NUMBER PERCENT
OF LEASES OF
YEAR EXPIRING TOTAL
- ---- --------- -------
<S> <C> <C>
2000........................................................ 27 3%
2001 to 2003................................................ 90 10%
2004 to 2006................................................ 74 8%
2007 to 2009................................................ 54 6%
2010 to 2012................................................ 40 4%
2013 to 2015................................................ 80 8%
2016 to 2018................................................ 371 40%
2019 to 2021................................................ 139 15%
2022 to 2024................................................ 9 1%
Properties under development................................ 15 2%
Unleased operating properties............................... 13 1%
Other(2).................................................... 22 2%
--- ---
Total core business properties.................... 934 100%
=== ===
</TABLE>
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(1) The lease expiration schedule does not include lease extension options.
(2) Consists of 22 leased properties in which the Company leases and subleases
the properties for approximately the same rents.
OWNERSHIP OF REAL ESTATE INTERESTS
Of the 934 Properties included in the Company's portfolio as of December
31, 1999, the Company (i) owned both the land and the restaurant building in fee
simple on 755 of such Properties (the "Fee Properties"), (ii) owned the land,
with the tenant owning the restaurant building, on 38 of such Properties and
(iii) leased the land, the building or both from a third-party lessor on 141 of
such Properties (the "Leasehold Properties"). Of the 141 Leasehold Properties,
39 are Properties on which the Company leases from a third party the underlying
land, the restaurant building and the other improvements thereon (the "Primary
Leases") and then subleases the property to the restaurant operator. Under the
terms of the remaining 102 Leasehold Properties (the "Ground Leases"), the
Company leases the underlying land from a third party and owns the restaurant
building and the other improvements constructed thereon. Upon expiration or
termination of a Primary Lease or Ground Lease, the owner of the underlying land
generally will become the owner of the building and all improvements thereon.
The terms of the Primary Leases and Ground Leases expire from 1 to 20 years.
With renewal options considered, the terms of the Primary Leases and Ground
Leases expire from 1 to 33 years, with the average remaining term being 18
years.
The terms and conditions of each Primary Lease and each Ground Lease vary
substantially. Such leases, however, have certain provisions in common,
including that: (i) the initial term is 20 years or less, (ii) the rentals
payable are stated amounts that may escalate over the terms of the Primary
Leases and Ground Leases (and/or during renewal terms), but normally are not
based upon a percentage of sales of the restaurants thereon, and (iii) the
Company is required to pay all taxes and operating, maintenance and insurance
expenses for the Leasehold Properties. In addition, under substantially all of
the leases the Company may renew the term one or more times at its option
(although the provisions governing any such renewal vary significantly and some
renewal options are at a fixed rental amount while others are at fair rental
value at the time of renewal). Several Primary Leases and Ground Leases also
give the owner the right to require the Company, upon the termination or
expiration thereof, to remove all improvements situated on the property.
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Although the Company, as lessee under each Primary Lease and Ground Lease,
generally has the right to freely assign or sublet all of its rights and
interests thereunder, the Company is not permitted to assign or sublet any of
its rights or interests under certain of the Primary Leases and certain of the
Ground Leases without obtaining the lessor's consent or satisfying certain other
conditions. In addition, approximately 20% of the Primary Leases and Ground
Leases require the Company to use such Leasehold Properties only for the purpose
of operating a Burger King(R) restaurant or another specified brand of
restaurant thereon. In any event, no transfer will release the Company from any
of its obligations under any Primary Lease or Ground Lease, including the
obligation to pay rent.
USE AND OTHER RESTRICTIONS ON THE OPERATION AND TRANSFER OF BURGER KING
RESTAURANT PROPERTIES
The Company was originally formed for the purpose of acquiring all BKC's
interests in the original portfolio and leasing or subleasing them to BKC
franchisees under the leases/subleases. Accordingly, the Operating Partnership
Agreement contains provisions that state, except as expressly permitted by BKC,
that the Company may not use such properties for any purpose other than to
operate a Burger King restaurant during the term of the lease. In furtherance
thereof, the Operating Partnership Agreement: (i) requires the Company, in
certain specified circumstances, to renew or extend a lease/sublease and enter
into a new lease with another franchisee of BKC, to approve an assignment of a
lease/sublease, to permit BKC to assume a lease/sublease at any time and to
renew a Primary Lease, and (ii) imposes certain restrictions and limitations
upon the Company's ability to sell, lease or otherwise transfer any interest in
such properties. The Operating Partnership Agreement requires the Company to
provide BKC notice of default under a lease/sublease and an opportunity to cure
such default prior to taking any remedial action. The Operating Partnership
Agreement also requires the Company under certain circumstances to provide
tenants with assistance with remodeling costs. Such terms with respect to such
properties imposed on the Company by the Operating Partnership Agreement may be
less favorable than those imposed upon other lessors of Burger King restaurants.
BKC has advised the Company that it intends to waive or not impose certain of
the restrictive provisions contained in the Operating Partnership Agreement.
EMPLOYEES AND MANAGEMENT
On February 29, 1999, the Company had approximately 45 employees. The
Company believes that relations with its employees are good.
COMPETITION
The Company believes that it competes with numerous other publicly-owned
entities, some of which dedicate substantially all of their assets and efforts
to acquiring, owning and managing chain restaurant properties. The Company also
competes with numerous private firms and individuals for the acquisition of
restaurant, service station and other service retail properties. In addition,
there are other publicly owned entities that are dedicated to acquiring, owning
and managing triple net lease properties. The majority of chain restaurant
properties are owned by restaurant operators and real estate investors.
Management believes, based on its industry knowledge and experience, that this
fragmented market provides the Company with substantial acquisition
opportunities. The Company also believes that the inability of most small
service retail owners to obtain funds with which to compete for acquisitions as
timely and inexpensively as the Company provides the Company with a competitive
advantage when seeking to acquire a restaurant or service station property.
The restaurants and service stations operated on the Company's properties
are subject to significant competition (including, for example, competition from
other national and regional "fast food" restaurant chains, local restaurants,
national and regional restaurant chains that do not specialize in "fast food"
but appeal to many of the same customers as do "fast food" restaurants, national
and regional service station chains, and other competitors such as convenience
store and supermarkets that sell ready-to-eat food and gasoline). The success of
the Company depends, in part, on the ability of the restaurants and service
stations operated on the properties to compete successfully with such
businesses. The Company does not anticipate that it will seek to engage directly
in or meet such competition. Instead, the Company will be dependent upon the
experience and ability of the lessees operating the businesses located on the
properties and, with respect to
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its franchisee-operated properties, the franchisor systems generally, to compete
with these other restaurants, service stations and similar operations.
REGULATIONS
The Company, through its ownership of interests in and management of real
estate, is subject to various environmental, health, land-use and other
regulation by federal, state and local governments that affects the development
and regulation of restaurant and service station properties. The Company's
leases impose the primary obligation for regulatory compliance on the operators
of the properties.
Environmental Regulation. Under various federal, state and local laws,
ordinances and regulations, an owner or operator of real property may become
liable for the costs of removal or remediation of certain hazardous substances
released on or within its property. Such liability may be imposed without regard
to whether the owner or operator knew of, or caused the release of the hazardous
substances. In addition to liability for cleanup costs, the presence of
hazardous substances on a property could result in the owner or operator
incurring liability as a result of a claim by an employee or another person for
personal injury or a claim by an adjacent property owner for property damage.
In connection with the Company's acquisition of a new property, a Phase I
environmental assessment is obtained. A Phase I environmental assessment
involves researching historical uses of a property, analyzing databases
containing registered underground storage tanks and other matters, and including
an on-site inspection to determine whether an environmental issue exists with
respect to the property which needs to be addressed. If the results of a Phase I
environmental assessment reveal potential issues, a Phase II assessment, which
may include soil testing, ground water monitoring or borings to locate
underground storage tanks, may be ordered for further evaluation. Depending on
the nature of the potential issue and the results of any Phase II assessment,
the transaction may be terminated or the acquisition may be consummated in
conjunction with actions taken to lessen any environmentally-related financial
or legal risk. The Company generally places acquired properties with potential
issues in special purpose limited liability companies to limit any future claims
concerning the properties, requires tenants to secure environmental insurance
and requires tenants to assume obligations relating to environmental issues.
The Company is not currently a party to any litigation or administrative
proceeding with respect to any property's compliance with environmental
standards. Furthermore, the Company is not aware of nor, based upon the
Company's actual present knowledge with respect to its properties, does it
anticipate any such action, or the need to expend any of its funds, in the
foreseeable future in connection with its acquisition or ownership of existing
properties which would have a material adverse affect upon the Company's
financial position, operations or cash flow.
Americans With Disabilities Act ("ADA"). Under the ADA, all public
accommodations, including restaurants, are required to meet certain federal
requirements relating to physical access and use by disabled persons. A
determination that the Company or a property of the Company is not in compliance
with the ADA could result in the imposition of fines, injunctive relief, damages
or attorney's fees. The Company's leases contemplate that compliance with the
ADA is the responsibility of the operator. The Company is not currently a party
to any litigation or administrative proceeding with respect to a claim of
violation of the ADA and does not anticipate any such action or proceeding that
would have a material adverse effect upon the Company.
Land-use, Fire and Safety Regulations. In addition, the Company and its
restaurant operators are required to operate the properties in compliance with
various laws, land-use regulations, fire and safety regulations and building
codes as may be applicable or later adopted by the governmental body or agency
having jurisdiction over the location of the property or the matter being
regulated. The Company does not believe that the cost of compliance with such
regulations and laws will have a material adverse effect upon the Company.
Health Regulations. The restaurant industry is regulated by a variety of
state and local departments and agencies, concerned with the health and safety
of restaurant customers. These regulations vary by restaurant location and type.
The Company's leases provide for compliance by the restaurant operator with all
health
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regulations and inspections and require that the restaurant operator obtain
insurance to cover liability for violation of such regulations or the
interruption of business due to closure caused by failure to comply with such
regulations. The Company is not currently a party to any litigation or
administrative proceeding with respect to the compliance with health regulations
of any property it finances, and does not anticipate any such action or
proceeding that would have a material adverse effect upon the Company.
Insurance. The Company requires its lessees to maintain adequate
comprehensive liability, fire, flood and extended loss insurance provided by
reputable companies with commercially reasonable and customary deductibles. The
Company also requires that it be named as an additional insured under such
policies. Certain types and amounts of insurance are required to be carried by
each operator under the leases with the Company, and the Company actively
monitors tenant compliance with this requirement. The Company intends to require
lessees of subsequently acquired properties to obtain similar insurance
coverage. There are, however, certain types of losses generally of a
catastrophic nature, such as earthquakes and floods, that may be either
uninsurable or not economically insurable, as to which the Company's properties
are at risk depending on whether such events occur with any frequency in such
areas. An uninsured loss could result in a loss to the Company of both its
capital investment and anticipated profits from the affected property. In
addition, because of coverage limits and deductibles, insurance coverage in the
event of a substantial loss may not be sufficient to pay the full current market
value or current replacement cost of the Company's investment. Inflation,
changes in building codes and ordinances, environmental considerations and other
factors also might make using insurance proceeds to replace a facility after it
has been damaged or destroyed infeasible. Under such circumstances, the
insurance proceeds received by the Company might be inadequate to restore its
economic position with respect to such property.
ITEM 2. PROPERTIES
GENERAL
The Company acquires, owns, manages and selectively develops restaurant,
service station and other service retail properties that it leases on a triple
net basis primarily to operators of fast food and casual dining chain
restaurants affiliated with national brands such as Burger King(R), Arby's(R),
Dairy Queen(R), Hardee's(R), Chili's(R), Pizza Hut(R) and Schlotzsky's(R) and
regional brands such as Grandy's(R) and Taco Cabana(R). During the first year
following acquisition by the Company, the Properties have historically provided
the Company with an aggregate first year return on total investment in excess of
11%. Management believes that the long-term, triple net structure of its leases
results in a more predictable and sustainable income stream than other forms of
real estate investments.
PROPERTIES
As of December 31, 1999, the Company owned 934 core business properties,
including 201 Burger King(R) Properties, 80 Arby's(R) Properties, 41 Dairy
Queen(R) Properties, 28 Schlotzsky's(R) Properties, 26 Hardee's(R) Properties,
21 Pizza Hut(R) Properties, and eight Chili's(R) Properties. The Properties are
diversified geographically in 48 states, with no state, except Texas (31%),
accounting for greater than 8% of the Properties. Of the 934 Properties,
approximately 97% were leased on a triple net basis as of December 31, 1999.
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The following table contains information by state regarding the Properties
owned by the Company as of December 31, 1999.
<TABLE>
<CAPTION>
NUMBER
OF PERCENT OF
LOCATION BY STATE PROPERTIES TOTAL
- ----------------- ---------- ----------
<S> <C> <C>
Texas....................................................... 290 31%
Georgia..................................................... 72 8%
North Carolina.............................................. 54 6%
California.................................................. 36 4%
Illinois.................................................... 36 4%
Michigan.................................................... 35 4%
New York.................................................... 34 4%
Arizona..................................................... 30 3%
Oklahoma.................................................... 29 3%
Florida..................................................... 28 3%
Hawaii...................................................... 27 3%
Minnesota................................................... 22 2%
Pennsylvania................................................ 20 2%
Tennessee................................................... 20 2%
Iowa........................................................ 18 2%
Indiana..................................................... 15 2%
South Carolina.............................................. 13 1%
Maryland.................................................... 12 1%
Missouri.................................................... 11 1%
Louisiana................................................... 10 1%
Ohio........................................................ 10 1%
Wisconsin................................................... 10 1%
Other states (less than 10 properties)...................... 102 11%
--- ---
Total core business properties.................... 934 100%
=== ===
</TABLE>
The Company intends to continue to acquire properties affiliated with major
national brands such as Burger King(R), Arby's(R), Dairy Queen(R), Hardee's(R),
Chili's(R), Pizza Hut(R) and Schlotzsky's(R) and regional brands such as
Grandy's(R) and Taco Cabana(R), operated by competent, financially-stable
multi-unit restaurant operators. The Company believes that successful
restaurants operated under these types of brands will continue to offer stable,
consistent income to the Company with reduced risk of default or non-renewal of
the lease and franchise agreements. The Company believes its income stream is
further protected through the increasing diversification of the Properties by
brand affiliation. Since existing management assumed control of the Company in
May 1994, the Company has significantly expanded the number of its brand
affiliations. Of the 811 Properties (net of dispositions) acquired since May
1994, only 78 are Burger King(R) restaurants and the balance are affiliated with
other national and regional chain restaurants.
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The following table contains information by brand regarding the Properties
owned by the Company as of December 31, 1999.
<TABLE>
<CAPTION>
NUMBER
OF PERCENT OF
BRAND NAME PROPERTIES TOTAL
- ---------- ---------- ----------
<S> <C> <C>
Burger King................................................. 201 21%
Arby's...................................................... 80 9%
Fina........................................................ 53 6%
Dairy Queen................................................. 41 4%
Arco........................................................ 36 4%
Conoco...................................................... 34 4%
Grandy's.................................................... 30 3%
Schlotzsky's................................................ 28 3%
Gant........................................................ 27 3%
Hardee's.................................................... 26 3%
Kettle...................................................... 24 3%
Popeye's.................................................... 24 3%
El Chico.................................................... 22 2%
Pizza Hut................................................... 21 2%
Spaghetti Warehouse......................................... 20 2%
Bruegger's Bagel............................................ 17 2%
Taco Cabana................................................. 13 1%
Applebee's.................................................. 12 1%
Clark Oil................................................... 12 1%
Phillip 66.................................................. 10 1%
Other brands (less than 10 properties)...................... 203 22%
--- ---
Total core business properties.................... 934 100%
=== ===
</TABLE>
ITEM 3. LEGAL PROCEEDINGS
The Company is not presently involved in any material litigation, nor to
its knowledge is any material litigation threatened against the Company or its
Properties, other than routine litigation arising in the ordinary course of
business.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
There were no matters submitted to stockholders in the quarter ended
December 31, 1999.
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PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS.
The Company's Common Stock is traded on the New York Stock Exchange under
the symbol "USV". The high and low sales prices of the shares and the
distributions paid during each calendar quarter of 1998 and 1999, and through
March 15, 2000 are set forth below:
<TABLE>
<CAPTION>
MARKET PRICE DIVIDENDS AND
------------------------------ DISTRIBUTIONS
HIGH LOW CLOSE PAID
-------- -------- -------- -------------
<S> <C> <C> <C> <C>
1998
First Quarter.................................... $28.2500 $23.6875 $27.3750 $0.3700
Second Quarter................................... 30.1250 26.8125 27.0625 0.3850
Third Quarter.................................... 29.2500 23.1250 25.4375 0.4000
Fourth Quarter................................... 25.8125 21.8125 24.3125 0.4175
-------
$1.5725
1999
First Quarter.................................... $24.6250 $17.7500 $19.3125 $0.4300
Second Quarter................................... 22.4375 18.2500 21.2500 0.4425
Third Quarter.................................... 21.1875 15.6875 19.0000 0.4550
Fourth Quarter................................... 19.0000 14.0625 14.3125 0.4625
-------
$1.7900
2000
First Quarter (Through March 15)................. $16.6250 $12.3125 $ 12.875 $0.4650
</TABLE>
As of March 15, 2000, the Common Stock was held by 1,767 stockholders of
record. The Company makes quarterly distributions in the form of dividends to
common stockholders and distributions to holders of Operating Partnership units.
As a REIT, the Company is required to distribute 95% of taxable income to
shareholders in the form of dividends. Of the $1.7900 per share distributed in
1999, $0.3570, or 20%, represented ordinary dividend income, and $1.4330, or
80%, represented return of capital.
9
<PAGE> 12
ITEM 6. SELECTED FINANCIAL DATA
The following information should be read in conjunction with the Company's
consolidated financial statements and notes thereto.
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-------------------------------------------------------
1995 1996 1997 1998 1999
-------- --------- --------- --------- --------
IN THOUSANDS, (EXCEPT PER UNIT/SHARE AND PROPERTY DATA)
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS:
Revenues(4)
Rental income............................................. $ 6,396 $ 14,555 $ 30,788 $ 51,832 $ 72,002
Interest income........................................... 70 194 1,091 2,855 6,747
Amortization of unearned income on direct financing
leases.................................................. 2,240 1,978 1,568 1,174 868
-------- --------- --------- --------- --------
Total Revenues...................................... 8,706 16,727 33,447 55,861 79,617
Expenses:
Rent(4)................................................... 261 289 351 489 653
Depreciation and amortization............................. 1,541 3,978 9,415 15,753 23,682
General and administrative................................ 1,419 2,299 3,590 4,793 19,602
Interest expense.......................................... 262 2,720 10,011 16,689 29,410
REIT Conversion Costs..................................... -- -- 920 -- --
Termination of management contract........................ -- -- 19,220 12,047 (239)
Equity in net loss (income) of affiliates................. -- -- -- 317 (13)
Impairment of long-lived assets........................... -- -- -- 127 5,000
-------- --------- --------- --------- --------
Total expenses...................................... 3,483 9,286 43,507 50,215 78,095
Gain (loss) on sale of property............................. -- 32 869 403 (165)
Minority interest in operating partnership.................. -- -- (202) 58 (567)
Loss on early extinguishment of debt........................ -- -- -- (190) --
-------- --------- --------- --------- --------
Net income (loss)................................... $ 5,223 $ 7,473 $ (9,393) $ 5,917 $ 790
======== ========= ========= ========= ========
Net income (loss) allocable to
Unitholders/Shareholders(1)............................... $ 5,119 $ 7,325 $ (10,261) $ (1,185) $ (6,312)
Weighted average units/shares outstanding(2):
Basic..................................................... 6,957 8,984 11,693 13,325 14,863
Diluted................................................... 7,015 9,190 11,693 13,325 14,863
Earnings (loss) per unit/share(2):
Basic..................................................... $ 0.74 $ 0.82 $ (0.88) $ (0.09) $ (0.42)
Diluted................................................... 0.73 0.80 (0.88) (0.09) (0.42)
Dividends/distributions per unit/share(2)................... $ 1.14 $ 1.25 $ 1.38 $ 1.57 $ 1.79
BALANCE SHEET DATA:
Total assets................................................ $ 71,483 $ 177,418 $ 359,149 $ 604,169 $702,591
Line of credit and long-term debt........................... 10,931 69,486 129,196 342,112 396,622
Capitalized lease obligations............................... 563 362 170 63 17
General partners' capital................................... 1,241 1,163 N/A N/A N/A
Limited partners' capital................................... 58,071 103,120 N/A N/A N/A
Stockholders' equity........................................ N/A N/A 205,412 209,775 194,164
Minority interest........................................... N/A N/A 19,536 29,567 81,685
OTHER DATA:
Funds From Operations (FFO)(3).............................. $ 8,314 $ 13,111 $ 1,068 $ 18,639 $ 24,852
Cash flow from operating activities......................... 9,288 13,852 19,334 41,002 33,962
Cash flow used in investing activities...................... (12,039) (100,978) (174,040) (246,488) (99,044)
Cash flow from financing activities......................... 2,077 87,500 155,429 206,239 72,920
Number of properties........................................ 139 322 591 854 934
</TABLE>
- ---------------
(1) Prior to October 15, 1997 the Company operated in the form of a master
limited partnership. Amounts shown for years prior to 1997 reflect net
income allocable to partnership unitholders, net income per partnership
unit, and cash distributions declared per partnership unit.
(2) Weighted average number of units/shares outstanding, dividends/distributions
per unit/share and earnings (loss) per unit/share have been adjusted to
reflect the three-for-two split of the Common Stock.
(3) The Company believes that it computes FFO in accordance with the standards
established by the National Association of Real Estate Investment Trusts
("NAREIT"), which may differ from the methodology for calculating FFO
utilized by other equity REITs, and, accordingly, may not be comparable to
such other REITs. The Company's FFO (basic) is computed as net income (loss)
available to common stockholders (computed in accordance with GAAP), plus
real estate-related depreciation and amortization but excluding the effects
of direct financing leases, minority interest, unusual charges and gains (or
losses) from debt restructuring and sales of property, and the effect of
unearned contingent rent. The Company believes FFO enhances and is helpful
to investors as a measure of the performance of an equity REIT because,
along with the Company's financial condition, results of operations and cash
flows, it provides investors with an understanding of the ability of the
Company to incur and service debt and make capital expenditures. In
evaluating FFO and the trends it depicts, investors should consider the
major factors affecting FFO. Growth in FFO will result from increases in
revenue or decreases in related operating expenses. Conversely, FFO will
decline if revenues decline or related operating expenses increase. FFO does
not represent amounts available for management's discretionary use because
of needed capital replacement or expansion, debt service obligations, or
other commitments and uncertainties. FFO should not be considered as an
alternative to net income (determined in accordance with GAAP) as an
indication of the Company's financial performance or to cash flows from
operating activities (determined in accordance with GAAP) as a measure of
the Company's liquidity, nor is it indicative of funds available to fund the
Company's cash needs, including its ability to make distributions.
(4) Reflects the reclassification in prior years of amounts previously reported
as rent expense to a reduction of rent income for those properties with
leases that require the operator to be responsible for the payment of ground
rents.
10
<PAGE> 13
ITEM 7.MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
RESULTS OF OPERATIONS
The Company derives its revenue from the leasing of its Properties to
operators (primarily restaurants and service stations) on a "triple net" basis.
Triple net leases typically require the tenants to be responsible for property
operating costs, including property taxes, insurance and maintenance. A majority
of the Company's leases provide for base rent plus a percentage of the
restaurant's sales in excess of a threshold amount. As a result, a portion of
the Company's revenues is a function of the number of restaurants in operation
and their level of sales. Sales at individual restaurants are influenced by
local market conditions, by the efforts of specific restaurant operators, by
marketing, by new product programs, support by the franchisor and by the general
state of the economy.
On October 15, 1997 the Company changed its form of business from a master
limited partnership to a REIT. U.S. Restaurant Properties, Inc. became the
successor entity to U.S. Restaurant Properties Master L.P. The results of
operations for the period October 15, 1997 to December 31, 1997 and for the year
ended December 31, 1998 and 1999 are presented as the continuation of the
operations of the predecessor entity.
The results of operations of the Company, together with its predecessors,
for the periods discussed below have been affected by the growth in the total
number of Properties owned by the Company, as well as by increases in rental
income across the portfolio, over such time periods. The following discussion
considers the specific impact of such factors on the results of operations of
the Company for the following periods.
Comparison of the twelve months ended December 31, 1999 to the twelve months
ended December 31, 1998
The Company owned 934 properties prior to January 1, 2000. The Company
acquired 80 properties (net of dispositions) from January 1, 1999 to December
31, 1999, the operations of which are included in the periods presented from
their respective dates of acquisition.
Revenues, including income earned on direct financing leases, in the twelve
months ended December 31, 1999 totaled $79,617,000, an increase of 43% when
compared to the twelve months ended December 31, 1998. The increase was due
primarily to increases in the number of properties owned during this period as
compared to the same period in 1998. Through December 31, 1999, approximately 8%
of the Company's rental revenues resulted from percentage rents (rents
determined as a percentage of tenant sales).
Also included in revenues is interest income relating to secured notes and
mortgages receivable from tenants and related parties and from investments in
financial instruments. Interest income was $6,747,000 for the twelve months
ended December 31, 1999, an increase of 136%. The increase over 1998 resulted
primarily from the effect of the increase in mortgage loan receivables during
1998 that were producing revenue for the full year during 1999. Additionally,
the Company recorded unrealized and realized gains from the sales of investments
of $1,047,000 in interest income for the year ended December 31, 1999.
Rent expense for the twelve months ended December 31, 1999 totaled
$653,000, an increase of 34% when compared to the twelve months ended December
31, 1998. Depreciation and amortization expenses in the twelve months ended
December 31, 1999 totaled $23,682,000, an increase of 50% when compared to the
twelve months ended December 31, 1998. The increase in rent expense and
depreciation and amortization expenses directly relate to the property
acquisitions during 1999 and 1998.
General and administrative expenses for the twelve months ended December
31, 1999 totaled $19,602,000, an increase of 309% when compared to the twelve
months ended December 31, 1998. The increase resulted in part from the
$7,024,000 write down of notes receivable from the Company's largest service
station business. Also included in general and administrative expenses were
$750,000 of charges relating to the resignation of Robert Stetson as President
and CEO, an increase in bad debt reserves of $3,476,000 that resulted from the
resolution of other tenant related credit issues as well as the increase in the
number of properties managed, and costs associated with increased
infrastructure, including additional employees required by the Company to manage
and maintain the Company's rate of growth. The $7,024,000 charge relates to
loans made by the Company to its tenant operating 27 service stations. As a
result of a
11
<PAGE> 14
deterioration in 1999 in the margins received on the sale of gasoline at these
service stations, the lessee was not able to make all of their scheduled loan
and rental payments. In the third quarter of 1999, the Company agreed to a
reduction of rent from the tenant and began recognizing rent and interest income
on a cash basis. During the fourth quarter, as a result of continued financial
problems, the Company wrote down the notes receivable from this tenant by
$7,024,000 based on the Company's evaluation of the collateral value. Prior to
the write-down, the Company's total investment relating to this tenant consisted
of approximately $9,853,000 in notes receivable and $31,728,000 in real estate
property. The Company evaluated the real estate property and determined that no
impairment reserve was necessary at this time.
Interest expense for the twelve months ended December 31, 1999 totaled
$29,410,000, an increase of 76%, when compared to the twelve months ended
December 31, 1998. The increase in interest expense directly relates to the
additional debt associated with the property acquisitions during 1999 and 1998.
A non-cash reduction to expense of $239,000 relating to the termination of
the management contract with QSV was recorded for the year ended December 31,
1999. This credit represents the market value, based on the market value of a
share of the Company's Common Stock at December 31, 1999, of 825,000 contingent
Operating Partnership units or shares of the Company's Common Stock which had
been earned by QSV at December 31, 1999 under the terms of the terminated
management contract, less amounts previously recorded on 495,509 units as of
December 31, 1998. A total of not more than 825,000 shares of Common Stock of
the Company or their equivalent in Operating Partnership Units will be issued to
QSV if certain earnings targets are met for the year 2000. These earnings
targets are calculated using a formula, primarily driven by the volume of
property transactions, which is based upon what QSV would have received under
their prior management contract. These Operating Partnership Units or shares of
the Company's Common Stock have not been issued and will not participate in any
income (loss) or receive any distributions from the Operating Partnership or
Company until they have been earned and issued in 2001.
Equity in net income of affiliates of $13,000 for the twelve months ended
December 31, 1999 relates to the Company's share of net income from its
investments in other entities in which the Company holds a minority interest.
The non-cash charge for impairment of long-lived assets of $5,000,000 for
the twelve months ended December 31, 1999 relates primarily to 34 service
station properties located in Georgia and the Company's intention to sell these
properties for an estimated realizable value that is below the book value of
these properties, plus an amount resulting from the Company's routine review of
the carrying value of real estate, direct financing leases and intangibles.
During the fourth quarter of 1999, the Company became aware that the lessee
of the Georgia service stations was having financial difficulty. As a result,
subsequent to year end, the Company issued a standby letter of credit in the
amount of $750,000 against which the beneficiary may present drafts if the
current tenant defaults on the payment terms for the purchase of gasoline. In
addition, the Company began working with the tenant and entered into a
memorandum of understanding. Under the agreement, the Company has several
options as it relates to the properties, including the potential sale of the
properties. Based upon this, the Company has evaluated the amount for which it
could sell the properties and has recorded the required impairment reserve of
$5,000,000.
Loss on sale of properties of $165,000 in 1999 related primarily to the
sale of 23 properties for cash of approximately $11,407,000 net of closing
costs. In addition, three properties were sold for notes receivable of
$2,941,000 from which the Company recorded a deferred gain on sale of $170,000.
Minority interest in net income of the Operating Partnership of ($567,000)
for 1999 represented income allocated to Operating Partnership units held by QSV
and other minority interest holders and preferred partnership interests issued
by a consolidated subsidiary of the Operating Partnership. Under the partnership
agreement, the preferred interest holder earns an 8.5% preference distribution
for its investment. Income is allocated to the preferred interest holder in an
amount sufficient to cover the 8.5% preferred distribution. All other income is
allocated to the Company as general partner of the partnership.
12
<PAGE> 15
Comparison of the twelve months ended December 31, 1998 to the twelve months
ended December 31, 1997
The Company owned 591 properties prior to January 1, 1998. The Company
acquired 286 properties from January 1, 1998 to December 31, 1998, the
operations of which are included in the periods presented from their respective
dates of acquisition.
Revenues, including income earned on direct financing leases, in the twelve
months ended December 31, 1998 totaled $55,861,000, an increase of 67% when
compared to the twelve months ended December 31, 1997. The increase was due
primarily to increases in the number of properties owned during this period as
compared to the same period in 1997. Through December 31, 1998, approximately
10% of the Company's rental revenues resulted from percentage rents (rents
determined as a percentage of tenant sales), down from 17% for the year ended
December 31, 1997. Percentage rents for 1998 would have been approximately 12%
of the Company's rental revenues before adjustment for the impact of EITF 98-9.
Thus, during the twelve months ended December 31, 1998, the impact of
fluctuations in restaurant sales had a diminishing impact on total rental
revenues.
Also included in revenues is interest income relating to secured notes and
mortgages receivable from tenants and related parties. Interest income was
$2,855,000 for the twelve months ended December 31, 1998 and $1,091,000 for the
twelve months ended December 31, 1997, an increase of 162%. The increase over
1997 resulted primarily from the increase in mortgage loan receivables during
the year ended December 31, 1998.
Rent expense for the twelve months ended December 31, 1998 totaled
$489,000, an increase of 39% when compared to the twelve months ended December
31, 1997. Depreciation and amortization expenses in the twelve months ended
December 31, 1998 totaled $15,753,000, an increase of 67% when compared to the
twelve months ended December 31, 1997. The increase in rent expense and
depreciation and amortization expenses directly relate to the property
acquisitions during 1998 and 1997.
General and administrative expenses for the twelve months ended December
31, 1998 totaled $4,793,000, an increase of 34% when compared to the twelve
months ended December 31, 1997. The increase was a result of the costs of the
increased infrastructure, including additional employees, required by the
Company to manage and maintain the Company's rate of growth, and to replace
management functions performed under the management contract prior to October
15, 1997, and an increase in bad debt reserves that relate to the increase in
the number of properties managed.
Interest expense for the twelve months ended December 31, 1998 totaled
$16,689,000, an increase of 67%, when compared to the twelve months ended
December 31, 1997. The increase in interest expense directly relates to the
additional debt associated with the property acquisitions during 1998 and 1997.
A non-cash accounting charge of $12,047,000 relating to the termination of
the management contract with QSV was recorded for the year ended December 31,
1998. This charge represents the market value of 495,509 contingent Operating
Partnership Units or shares of the Company's Common Stock at December 31, 1999,
which would be earned by QSV at that date under the terms of the terminated
management contract. A total of not more than 825,000 shares of Common Stock of
the Company or their equivalent in Operating Partnership Units will be issued to
QSV if certain earnings targets are met for the year 2000. These earnings
targets are calculated using a formula, primarily driven by the volume of
property transactions, which is based upon what QSV would have received under
their prior management contract. These Operating Partnership Units or shares of
Common Stock have not been issued, and will not participate in any income (loss)
or receive any distributions from the Operating Partnership or the Company until
they have been earned and issued in 2001.
Equity in net loss of affiliates of $317,000 for the twelve months ended
December 31, 1998 relates to the Company's share of net losses from its
investments in other entities in which the Company holds a minority interest.
The non-cash charge for impairment of long-lived assets of $127,000 for the
twelve months ended December 31, 1998 relates to the Company's routine review of
the carrying value of real estate, direct financing leases and intangibles.
13
<PAGE> 16
Minority interest in net income of the Operating Partnership of $58,000 for
1998 related to Operating Partnership units held by QSV and other minority
interest holders. Gain on sale of properties of $403,000 in 1998 related
primarily to the sale of 12 restaurant properties for cash of $6,679,000 net of
closing costs. The loss on early extinguishment of debt of $190,000 for the year
ended December 31, 1998 relates to the write off of unamortized deferred
financing costs in conjunction with the termination of the Company's secured
revolving credit facility in January, 1998.
LIQUIDITY AND CAPITAL RESOURCES.
The Company's principal demands for short-term and long-term liquidity are:
monthly debt service payments, capital improvements and development of property,
distributions to stockholders and minority interest holders and property
acquisitions.
The Company's principal source of cash to meet its short-term cash
requirements is rental revenues generated by the Company's properties. Cash
generated by the portfolio in excess of operating needs is used to pay dividends
and reduce amounts outstanding under the Company's credit agreements. As of
December 31, 1999, the Company has non-binding contracts for acquisitions of
approximately $12 million. The terms of the Company's leases ("triple net
leases") generally require that the tenant is responsible for maintenance and
improvements to the property. Thus the Company is generally not required to
expend funds for remodels and renovation. However, the Company expects to spend
approximately $1 million a year to renovate and remodel currently owned
properties. At December 31, 1999, the Company had 15 properties in various
stages of development. As of December 31, 1999, the Company had commitments of
approximately $11,781,000 representing construction contract costs not yet
incurred.
During 1999, the Company paid dividends of $1.79 per share, or an aggregate
of $28,805,000 to common stockholders and minority interests. The Company also
paid an aggregate of $1,106,000 to holders of 8.5% preferred partnership
interests in a subsidiary of the Company. In addition, the Company paid
dividends of $1.93 per share, or an aggregate of $7,102,000 to holders of the
Company's Preferred Stock. On March 15, 2000, the Company paid a dividend of
$0.465 per share to common stockholders and minority interests and $0.4825 per
share to preferred stockholders. In addition, on February 22, 2000, the Company
declared a dividend of $0.465 per share to common stockholders and minority
interests and $0.4825 per share to preferred stockholders to be paid on June 15,
2000 to stockholders of record as of June 1, 2000.
On April 12, 1999, the OP entered into an unsecured credit agreement with
Credit Lyonnais ("CLNY Agreement") under which the OP could borrow up to a
maximum of $50 million on or before July 9, 1999. As of December 31, 1999, the
Company has borrowed the total $50 million under the CLNY Agreement. The note
provides that borrowings bear interest at the then current LIBOR plus a margin
spread ranging from 2.00% to 2.75%, dependent on a leverage ratio formula, and
matures on April 11, 2002. At December 31, 1999 the margin spread was 2.75%
which resulted in an effective interest rate of 8.19%.
On January 17, 1998, the OP entered into a credit agreement with a
syndicate of banks for an unsecured revolving credit line of $175 million. This
credit agreement replaced the Company's then existing line of credit. As of
December 31, 1999, the Company has approximately $7 million available under the
unsecured line of credit. The Company may request advances under this credit
agreement to finance the acquisition of properties, to repair and update
properties and for working capital. This credit agreement expires on January 15,
2001 and provides that borrowings thereunder bear interest at LIBOR plus a
margin spread which was 1.35% per annum at December 31, 1999 for an effective
interest rate of 7.81%. On February 23, 1999, the OP entered into an Assignment
and Acceptance agreement that became effective on April 12, 1999 upon execution
of the credit agreement with Credit Lyonnais. Under the terms of the Assignment
and Acceptance the OP became a party to the revolving credit agreement, and
accepted the assignment of $10 million of the available credit line. This
agreement effectively reduced the maximum availability under the revolving
credit agreement by $10 million.
On October 5, 1999, a subsidiary of the Company issued $55 million of
preferred partnership interests with priority distribution rights of 8.5% per
annum. The proceeds from the sale of the units were used primarily to repay debt
and to reduce borrowings under the Company's line of credit. Approximately
14
<PAGE> 17
$17 million of the proceeds were placed in an escrow account for use in future
acquisitions on a tax-deferred property exchange basis.
The Company's long-term capital needs include the refinancing of various
debt facilities. Lines of credit and notes payable principal debt maturities for
the next five years at December 31, 1999 are as follows (in thousands):
<TABLE>
<S> <C>
2000...................................................... $ 12,529
2001...................................................... 147,117
2002...................................................... 77,534
2003...................................................... 47,536
2004...................................................... 39
Later..................................................... 111,867
--------
Total........................................... $396,622
========
</TABLE>
Management believes that cash from operations and the existing debt
facilities, along with the Company's ability to raise additional debt and
equity, including the issuance of Operating Partnership Units in exchange for
properties, will provide the Company with sufficient liquidity to meet its
short-term and long-term capital needs. However, there can be no assurance that
the terms at which existing debt is refinanced will be as favorable to the
Company as under the existing facilities.
FUNDS FROM OPERATIONS (FFO)
The Company believes that it computes FFO in accordance with the standards
established by the National Association of Real Estate Investment Trusts
("NAREIT"), which may differ from the methodology for calculating FFO utilized
by other equity REITs, and, accordingly, may not be comparable to such other
REITs. The Company's FFO is computed as net income (loss) available to common
stockholders (computed in accordance with GAAP), plus real estate related
depreciation and amortization but excluding the effects of direct financing
leases, minority interest, unusual and non-recurring charges and gains (or
losses) from debt restructuring and sales of property, and the effect of EITF
98-9. The definition of FFO has been changed effective January 1, 2000, to be
more restrictive and requires the restatement of previously reported FFO
amounts. The Company believes FFO is helpful to investors as a measure of the
performance of an equity REIT because, along with the Company's financial
condition, results of operations and cash flows, it provides investors with an
understanding of the ability of the Company to incur and service debt and make
capital expenditures. In evaluating FFO and the trends it depicts, investors
should consider the major factors affecting FFO. Growth in FFO will result from
increases in revenue or decreases in related operating expenses. Conversely, FFO
will decline if revenues decline or related operating expenses increase. FFO
does not represent amounts available for management's discretionary use because
of needed capital replacement or expansion, debt service obligations, or other
commitments and uncertainties. FFO should not be considered as an alternative to
net income (determined in accordance with GAAP) as an indication of the
Company's financial performance or to cash flows from operating activities
(determined in accordance with GAAP) as a measure of the Company's liquidity,
nor is it indicative of funds available to fund the Company's cash needs,
including its ability to make distributions.
The following table sets forth, for the years ended December 31, 1997, 1998
and 1999, the calculation of FFO on a diluted basis. Net income (loss) allocable
to common stockholders, which is used in calculating FFO, includes a non-cash
accounting credit of $239,000 for 1999 and a charge of $12,047,000 and
$19,220,000 for 1998 and 1997, respectively, which relates to the contingent OP
units or shares of Common Stock that would have been earned by QSV under the
provisions of the 1997 management contract termination
15
<PAGE> 18
agreement. The 1997 charge relates to actual OP units issued to QSV under the
provisions of the 1997 management contract termination agreement.
<TABLE>
<CAPTION>
1997 1998 1999
-------- ------- -------
(AMOUNTS IN THOUSANDS)
<S> <C> <C> <C>
Net income (loss) allocable to Common Stock/unit
holders.............................................. $(10,261) $(1,185) $(6,312)
Direct financing lease payments........................ 2,286 2,250 1,820
Capital lease principal payments....................... (169) (107) (58)
Depreciation and amortization.......................... 9,415 15,677 23,589
Loss (gain) on sale of property........................ (869) (403) 165
REIT conversion costs.................................. 920 -- --
Loss on early extinguishment of debt................... -- 190 --
Non-cash impairment of long-lived assets............... -- 127 5,000
Effect of unearned contingent rent(1).................. -- 2,148 81
Less adjustments allocable to minority interests....... (254) (1,553) (2,274)
-------- ------- -------
FFO -- Basic................................. $ 1,068 $17,144 $22,011
Income (loss) allocable to minority interest........... -- (58) 567
Adjustments allocable to minority interest............. -- 1,553 2,274
-------- ------- -------
FFO -- Diluted(2)............................ $ 1,068 $18,639 $24,852
======== ======= =======
Weighted average shares outstanding -- Basic........... 11,693 13,325 14,863
Dilutive effect of OP units............................ -- 1,151 1,219
Dilutive effect of contingent OP units................. -- 496 825
Dilutive effect of options............................. 232 164 42
Dilutive effect of Guaranteed Stock.................... 8 1 100
-------- ------- -------
Total(2)..................................... 11,933 15,137 17,049
======== ======= =======
</TABLE>
- ---------------
(1) Net income (loss) for 1999 and 1998 reflects the implementation of EITF
Issue 98-9 effective May 21, 1998 (which was confirmed by SAB No. 101 in
December 1999). The adjustment represents a deferral of contingent revenue
to future periods for which cash has been received. Since FFO is intended as
a supplementary measure of operating performance, the impact of adoption of
EITF Issue 98-9 has been added back to the net loss in arriving at FFO.
(2) For the twelve month periods ended December 31, 1997, 1998 and 1999
preferred stock is antidilutive. For the twelve month period ended December
31, 1997, OP units are antidilutive.
INFLATION
Some of the Company's leases are subject to adjustments for increases in
the Consumer Price Index, which reduces the risk to the Company of the adverse
effects of inflation. Additionally, to the extent inflation increases sales
volume, percentage rents may tend to offset the effects of inflation on the
Company. Because triple net leases also require the restaurant operator to pay
for some or all operating expenses, property taxes, property repair and
maintenance costs (including environmental costs) and insurance, some or all of
the inflationary impact of these expenses will be borne by the restaurant
operator and not by the Company.
Operators of restaurants, in general, possess the ability to adjust menu
prices quickly. However, competitive pressures may limit a restaurant operator's
ability to raise prices in the face of inflation.
SEASONALITY
Fast food restaurant operations historically have been seasonal in nature,
reflecting higher unit sales during the second and third quarters due to warmer
weather and increase leisure travel. This seasonality can be expected to cause
fluctuations in the Company's quarterly revenue to the extent it recognizes
percentage rent.
16
<PAGE> 19
NEW ACCOUNTING PRONOUNCEMENTS
In 1998, SFAS No. 133, "Accounting for Certain Derivative Instruments and
Certain Hedging Activities" was issued. This standard establishes new accounting
and reporting standards for derivative financial instruments and must be adopted
no later than January 1, 2001. The Company is currently evaluating the effect of
this standard and does not expect it to have a material effect on its results of
operations, financial position or cash flows.
YEAR 2000 SYSTEMS CONVERSION
The Company experienced no material adverse affects relating to the change
to the calendar year 2000.
RISKS ASSOCIATED WITH FORWARD-LOOKING STATEMENTS INCLUDED IN THIS FORM 10-K.
This Form 10-K contains certain forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Act of 1934, which are intended to be covered by the safe harbors
created thereby. These statements include the plans and objectives of management
for future operations, including plans and objectives relating to property
acquisitions. The forward-looking statements included herein are based on
current expectations that involve numerous risks and uncertainties. Assumptions
relating to the foregoing involve judgments with respect to, among other things,
future economic, competitive and market conditions and future business
decisions, all of which are difficult or impossible to predict accurately and
many of which are beyond the control of the Company. Although the Company
believes that the assumptions underlying the forward-looking statements are
reasonable, any of the assumptions could be inaccurate and, therefore there can
be no assurance that the forward-looking statements included in this Form 10-K
will prove to be accurate. In light of the significant uncertainties inherent in
the forward-looking statements included herein, the inclusion of such
information should not be regarded as a representation by the Company or any
other person that the objectives and plans of the Company will be achieved.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company has limited exposure to financial market risks, including
changes in interest rates and other relevant market prices. The Company does not
have any foreign operations and thus is not exposed to foreign currency
fluctuations.
The fair value of the Company's investments would be affected by an
increase or decrease in interest rates as the majority of the investments are
interest denominated instruments. However the Company's investment portfolio of
$2.5 million is relatively small, and changes in value relating to market risks
would not significantly impact the Company's operations. The Company also has
investments in fixed rate notes and mortgage loans receivable. Changes in
interest rates do not have a direct impact on interest income related to these
notes and loans.
An increase or decrease in interest rates would affect interest costs
relating to the Company's variable rate credit facilities. At December 31, 1999
there was $197,000,000 of variable rate debt outstanding on these facilities.
These facilities are priced with a floating interest rate based on LIBOR plus a
margin of between 135 and 275 basis points. The Company has no interest rate
swap or other hedging agreements relating to these facilities. These facilities
represent approximately 50% of the Company's outstanding long term debt. A 10%
increase or decrease in interest rates would result in an increase or decrease
in interest charges relating to these facilities of approximately $1.6 million
for a full year. Changes in interest rates do not have a direct impact on
interest expense relating to the remaining fixed rate debt facilities.
The Company has on occasion issued shares of Common Stock or Operating
Partnership Units in exchange for property, and has guaranteed a minimum value
for those shares/units. Should the market value of the Common Stock not reach
the guaranteed value by a specified date (usually two or three years after
issue), then the Company may be obligated to issue additional shares/units under
the guarantee agreements. At December 31, 1999 there were 23,725 shares of
Common Stock and 146,169 Operating Partnership Units
17
<PAGE> 20
with guaranteed market prices of between $26.18 and $30.00 per share/unit. The
dilutive equivalent of these guarantees at the end of 1999 represented an
additional 100,438 shares.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The financial information and supplementary data begin on page F-1 of this
Annual Report on Form 10-K. Such information is incorporated by reference into
this Item 8.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information required by this item will be incorporated by reference
from the Company's definitive Proxy Statement for its 1999 Annual Meeting of
Stockholders to be filed with the Securities and Exchange Commission pursuant to
Regulation 14A under the Securities Exchange Act of 1934.
ITEM 11. EXECUTIVE COMPENSATION
The information required by this item will be incorporated by reference
from the Company's definitive Proxy Statement for its 1999 Annual Meeting of
Stockholders to be filed with the Securities and Exchange Commission pursuant to
Regulation 14A under the Securities Exchange Act of 1934.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required by this item will be incorporated by reference
from the Company's definitive Proxy Statement for its 1999 Annual Meeting of
Stockholders to be filed with the Securities and Exchange Commission pursuant to
Regulation 14A under the Securities Exchange Act of 1934.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by this item will be incorporated by reference
from the Company's definitive Proxy Statement for its 1999 Annual Meeting of
Stockholders to be filed with the Securities and Exchange Commission pursuant to
Regulation 14A under the Securities Exchange Act of 1934.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a)(1) Financial Statements
For a list of the consolidated financial statements of the Registrant filed
as part of this Annual Report on Form 10-K, see page F-1, herein.
(a)(2) Financial Statement Schedules
Schedule III Real Estate and Accumulated Depreciation.
All other schedules have been omitted because the required information of
such other schedules is not present, is not present in amounts sufficient to
require submission of the schedule or is included in the consolidated financial
statements.
18
<PAGE> 21
(b) Reports on Form 8-K
A report on Form 8-K dated July 2, 1999 was filed with the Securities and
Exchange Commission on July 6, 1999 reporting information regarding the
acquisition of 71 properties.
A report on Form 8-K dated July 6, 1999 was filed with the Securities and
Exchange Commission on July 7, 1999 incorporating by reference exhibits into
Part II of the Company's registration statement on Form S-3 (Registration No.
333-34263).
(c) Exhibits
The Exhibits filed as part of this Annual Report on Form 10-K are submitted
as a separate section.
19
<PAGE> 22
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Company has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
U.S. RESTAURANT PROPERTIES, INC.
By: /s/ FRED H. MARGOLIN
----------------------------------
Fred H. Margolin
Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed by the following persons on behalf of U.S. Restaurant
Properties, Inc. and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- ---------- ----- ----
<C> <S> <C>
/s/ FRED H. MARGOLIN Chairman of the Board of March 30, 2000
- ----------------------------------------------------- Directors, Chief Executive Officer
Fred H. Margolin and Director (Principal Executive
Officer)
/s/ MICHAEL D. WARREN Director of Finance (Principal March 30, 2000
- ----------------------------------------------------- Accounting Officer)
Michael D. Warren
/s/ ROBERT J. STETSON Director March 30, 2000
- -----------------------------------------------------
Robert J. Stetson
/s/ GERALD H. GRAHAM Director March 30, 2000
- -----------------------------------------------------
Gerald H. Graham
/s/ DAVID K. ROLPH Director March 30, 2000
- -----------------------------------------------------
David K. Rolph
/s/ DARREL L. ROLPH Director March 30, 2000
- -----------------------------------------------------
Darrel L. Rolph
/s/ EUGENE G. TAPER Director March 30, 2000
- -----------------------------------------------------
Eugene G.Taper
</TABLE>
20
<PAGE> 23
This page intentionally left blank
<PAGE> 24
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<S> <C>
U.S. RESTAURANT PROPERTIES, INC
CONSOLIDATED FINANCIAL STATEMENTS
Independent Auditors' Report.............................. F-2
Consolidated Balance Sheets as of December 31, 1999 and
1998................................................... F-3
Consolidated Statements of Operations for the years ended
December 31, 1999, 1998 and 1997....................... F-4
Consolidated Statements of Comprehensive Operations for
the years ended December 31, 1999, 1998 and 1997....... F-5
Consolidated Statements of Stockholders' Equity and
Partners' Capital for the years ended December 31,
1999, 1998 and 1997.................................... F-6
Consolidated Statements of Cash Flows for the years ended
December 31, 1999, 1998 and 1997....................... F-7
Notes to Consolidated Financial Statements................ F-9
</TABLE>
The following financial statement supplementary schedule of the Registrant
and its subsidiaries required to be included in Item 14(a)(2) is listed below:
<TABLE>
<S> <C>
Schedule III -- Real Estate and Accumulated Depreciation.... S-1
</TABLE>
F-1
<PAGE> 25
INDEPENDENT AUDITORS' REPORT
The Board of Directors and Shareholders
U.S. Restaurant Properties, Inc.
We have audited the accompanying consolidated balance sheets of U.S.
Restaurant Properties, Inc. and its subsidiaries (the Company) as of December
31, 1999 and 1998, and the related consolidated statements of operations,
comprehensive operations, stockholders' equity and partners' capital and cash
flows for each of the three years in the period ended December 31, 1999. Our
audit for the year ended December 31, 1999 also included the financial statement
schedule listed in the Index at Item 14(a)(2). These financial statements and
financial statement schedule are the responsibility of the Company's management.
Our responsibility is to express an opinion on the financial statements and
financial statement schedule based on our audits.
We conducted our audits in accordance with auditing standards generally
accepted in the United States of America. Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe our audits provide a reasonable
basis for our opinion.
In our opinion, such consolidated financial statements present fairly, in
all material respects, the financial position of U.S. Restaurant Properties,
Inc. and subsidiaries as of December 31, 1999 and 1998, and the results of their
operations and their cash flows for each of the three years in the period ended
December 31, 1999, in conformity with accounting principles generally accepted
in the United States of America. Also, in our opinion, such financial statement
schedule, when considered in relation to the basic consolidated financial
statements taken as a whole, presents fairly in all material respects the
information set forth therein.
As discussed in Note 2 to the consolidated financial statements, the
Company changed its method of accounting for contingent rents effective May 21,
1998 to comply with the consensus reached by the Emerging Issues Task Force in
Issue 98-9.
DELOITTE & TOUCHE LLP
Dallas, Texas
March 30, 2000
F-2
<PAGE> 26
U.S. RESTAURANT PROPERTIES, INC.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------
1999 1998
-------- --------
(IN THOUSANDS, EXCEPT
PER SHARE AMOUNTS)
<S> <C> <C>
ASSETS
Property, at cost
Land...................................................... $210,976 $172,155
Building and leasehold improvements....................... 410,010 342,686
Machinery and equipment................................... 13,535 8,057
-------- --------
634,521 522,898
Less: accumulated depreciation............................ (49,381) (27,938)
-------- --------
585,140 494,960
Construction in progress.................................... 26,699 30,713
Cash and cash equivalents................................... 9,695 1,857
Restricted cash and marketable securities................... 13,794 700
Rent and other receivables, net (includes $308 and $1,962
due from related parties in 1999 and 1998,
respectively)............................................. 10,048 10,817
Prepaid expenses and purchase deposits...................... 1,485 10,091
Investments................................................. 2,538 3,057
Notes receivable, net (includes $2,186 and $2,300 due from
related parties in 1999 and 1998,
respectively)............................................. 12,240 8,225
Mortgage loans receivable................................... 24,677 23,275
Net investment in direct financing leases................... 6,041 9,678
Intangibles and other assets, net........................... 10,234 10,796
-------- --------
Total assets........................................ $702,591 $604,169
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Accounts payable and accrued liabilities.................... $ 17,743 $ 11,492
Accrued dividends and distributions......................... 9,619 8,456
Unearned contingent rent.................................... 2,229 2,148
Deferred gain on sale of property........................... 512 556
Lines of credit............................................. 147,086 136,000
Notes payable............................................... 248,500 205,050
Mortgage note payable....................................... 1,036 1,062
Capitalized lease obligations............................... 17 63
-------- --------
Total liabilities................................... 426,742 364,827
Commitments and contingencies (Notes 8, 9 and 11)
Minority interest in operating partnerships................. 81,685 29,567
Stockholders' equity
Preferred stock, $.001 par value per share; 50,000 shares
authorized, Series A -- 3,680 shares issued and
outstanding at December 31, 1999 and 1998 (aggregate
liquidation value of $92,000)............................. 4 4
Common stock, $.001 par value per share; 100,000 shares
authorized, 15,405 and 14,372 shares issued and
outstanding at December 31, 1999 and 1998, respectively... 15 14
Additional paid-in capital.................................. 281,420 262,024
Excess stock, $.001 par value per share 15,000 shares
authorized, no shares issued
Accumulated other comprehensive loss........................ (1,829) (797)
Distributions in excess of net income....................... (85,446) (51,470)
-------- --------
Total stockholders' equity.......................... 194,164 209,775
-------- --------
Total liabilities and stockholders' equity.......... $702,591 $604,169
======== ========
</TABLE>
See Notes to Consolidated Financial Statements.
F-3
<PAGE> 27
U.S. RESTAURANT PROPERTIES, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------------
1999 1998 1997
---------- ---------- -----------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C>
Revenues:
Rental income............................................. $72,002 $51,832 $ 30,788
Interest and investment income............................ 6,747 2,855 1,091
Amortization of unearned income on direct financing
leases................................................. 868 1,174 1,568
------- ------- --------
Total revenues.................................... 79,617 55,861 33,447
Expenses:
Rent...................................................... 653 489 351
Depreciation and amortization............................. 23,682 15,753 9,415
General and administrative................................ 19,602 4,793 3,590
Interest expense.......................................... 29,410 16,689 10,011
REIT conversions costs.................................... -- -- 920
Termination of management contract........................ (239) 12,047 19,220
Equity in net loss (income) of affiliates................. (13) 317 --
Impairment of long lived assets........................... 5,000 127 --
------- ------- --------
Total expenses.................................... 78,095 50,215 43,507
------- ------- --------
Income (loss) before gain on sale of property and minority
interest.................................................. 1,522 5,646 (10,060)
Gain (loss) on sale of property............................. (165) 403 869
------- ------- --------
Income (loss) before minority interest and extraordinary
item...................................................... 1,357 6,049 (9,191)
Minority interest in operating partnership.................. (567) 58 (202)
------- ------- --------
Income (loss) before extraordinary item..................... 790 6,107 (9,393)
Loss on early extinguishment of debt........................ -- (190) --
------- ------- --------
Net income (loss)................................. 790 5,917 (9,393)
Dividends on preferred stock/General Partner interest....... (7,102) (7,102) (868)
------- ------- --------
Net loss allocable to common stockholders......... $(6,312) $(1,185) $(10,261)
======= ======= ========
Net loss per share -- basic and diluted..................... $ (0.42) $ (0.09) $ (0.88)
Weighted average shares outstanding -- basic and diluted.... 14,863 13,325 11,693
</TABLE>
See Note 2 for Pro Forma Effect of Change in Accounting Principle.
See Notes to Consolidated Financial Statements.
F-4
<PAGE> 28
U.S. RESTAURANT PROPERTIES, INC.
CONSOLIDATED STATEMENTS OF COMPREHENSIVE OPERATIONS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------
1999 1998 1997
------- ------ -------
(IN THOUSANDS)
<S> <C> <C> <C>
Net income (loss)........................................... $ 790 $5,917 $(9,393)
Other comprehensive loss -- unrealized loss on
investments............................................ (1,032) (797) --
------- ------ -------
Comprehensive income (loss)................................. $ (242) $5,120 $(9,393)
======= ====== =======
</TABLE>
F-5
<PAGE> 29
U.S. RESTAURANT PROPERTIES, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY AND PARTNERS' CAPITAL
FOR YEARS ENDED DECEMBER 31, 1999, 1998 AND 1997
<TABLE>
<CAPTION>
PREFERRED
STOCK COMMON STOCK
-------------- --------------
GENERAL LIMITED PAR PAR
UNITS PARTNERS PARTNERS SHARES VALUE SHARES VALUE
-------- -------- --------- ------ ----- ------ -----
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at January 1, 1997....... 10,341 $1,163 $ 103,120
Net income for the period
January 1 through October 15,
1997.......................... 135 6,678
Units issued for property....... 681 13,796
Proceeds from units issued in
private placements............ 1,435 25,000
Proceeds from exercised unit
options....................... 75 775
Distributions.................... (240) (11,776)
-------- ------ --------- ----- -- ------ ---
Balance before REIT conversion... 12,532 1,058 137,593 -- -- -- --
Conversion to REIT.............. (12,532) (1,058) (137,593) 12,658 $13
Sale of preferred stock......... 3,680 4
Proceeds from exercised stock
options....................... 40
Net loss for the period October
16 through December 31,
1997..........................
Distributions...................
-------- ------ --------- ----- -- ------ ---
Balance at December 31, 1997..... -- -- -- 3,680 4 12,698 13
Proceeds from exercised stock
options....................... 300
Proceeds from sale of common
stock......................... 1,359 1
Stock issued for "equity
ownership interest in another
entity"....................... 24
Stock issued for property....... 25
Common stock repurchased and
retired....................... (34)
Other comprehensive loss........
Net income......................
Distributions on preferred
stock.........................
Distributions on common stock...
Common and preferred stock
distributions declared........
-------- ------ --------- ----- -- ------ ---
Balance at December 31, 1998..... -- -- -- 3,680 4 14,372 14
Proceeds from exercised stock
options....................... 25 --
Proceeds from sale of common
stock......................... 1,010 1
Stock issued for property....... 105 --
Common stock repurchased and
retired....................... (107) --
Other comprehensive loss........
Net income......................
Distributions on preferred
stock.........................
Distributions on common stock
and distributions declared....
-------- ------ --------- ----- -- ------ ---
Balance at December 31, 1999..... $ -- $ -- $ -- 3,680 $4 15,405 $15
======== ====== ========= ===== == ====== ===
<CAPTION>
ACCUMULATED
ADDITIONAL DISTRIBUTIONS OTHER
PAID-IN IN EXCESS OF COMPREHENSIVE
CAPITAL NET INCOME LOSS TOTAL
---------- ------------- ------------- --------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
Balance at January 1, 1997....... $104,283
Net income for the period
January 1 through October 15,
1997.......................... 6,813
Units issued for property....... 13,796
Proceeds from units issued in
private placements............ 25,000
Proceeds from exercised unit
options....................... 775
Distributions.................... (12,016)
-------- -------- ------- --------
Balance before REIT conversion... -- -- -- 138,651
Conversion to REIT.............. $138,109 (529)
Sale of preferred stock......... 87,618 87,622
Proceeds from exercised stock
options....................... 413 413
Net loss for the period October
16 through December 31,
1997.......................... (16,206) (16,206)
Distributions................... (4,539) (4,539)
-------- -------- ------- --------
Balance at December 31, 1997..... 226,140 (20,745) -- 205,412
Proceeds from exercised stock
options....................... 3,099 3,099
Proceeds from sale of common
stock......................... 32,406 32,407
Stock issued for "equity
ownership interest in another
entity"....................... 621 621
Stock issued for property....... 600 600
Common stock repurchased and
retired....................... (842) (842)
Other comprehensive loss........ (797) (797)
Net income...................... 5,917 5,917
Distributions on preferred
stock......................... (7,675) (7,675)
Distributions on common stock... (21,011) (21,011)
Common and preferred stock
distributions declared........ (7,956) (7,956)
-------- -------- ------- --------
Balance at December 31, 1998..... 262,024 (51,470) (797) 209,775
Proceeds from exercised stock
options....................... 257 257
Proceeds from sale of common
stock......................... 20,474 20,475
Stock issued for property....... 599 599
Common stock repurchased and
retired....................... (1,934) (1,934)
Other comprehensive loss........ (1,032) (1,032)
Net income...................... 790 790
Distributions on preferred
stock......................... (7,102) (7,102)
Distributions on common stock
and distributions declared.... (27,664) (27,664)
-------- -------- ------- --------
Balance at December 31, 1999..... $281,420 $(85,446) $(1,829) $194,164
======== ======== ======= ========
</TABLE>
See Notes to Consolidated Financial Statements.
F-6
<PAGE> 30
U.S. RESTAURANT PROPERTIES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOW
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------------
1999 1998 1997
--------- --------- ---------
(IN THOUSANDS)
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss)......................................... $ 790 $ 5,917 $ (9,393)
Adjustments to reconcile net income (loss) to net cash
from operating activities:
Depreciation and amortization........................... 23,682 15,753 9,415
Amortization of deferred financing costs................ 1,219 666 385
Impairment of long-lived assets......................... 5,000 127 --
Write-off and increase in reserves on receivables....... 8,349 -- --
Non-cash interest income................................ (549) (136) --
Unrealized gain on trading securities................... (1,047) -- --
Equity in (income) loss of affiliates................... (13) 317 --
Minority interest in operating partnership.............. 567 (58) 202
Loss (gain) on sale of property......................... 165 (403) (869)
Loss on early extinguishment of debt.................... -- 190 --
Termination of management contract...................... (239) 12,047 19,220
Distributions received on investments................... 278 470 --
Increase in restricted cash............................. (13,094) (700) --
Increase in rent and other receivables, net............. 669 (5,463) (2,365)
Increase in prepaid expenses............................ (17) 708 (1,043)
Reduction in net investment in direct financing
leases............................................... 1,867 2,172 2,286
Increase in accounts payable and accrued liabilities.... 6,254 7,247 1,496
Increase in unearned contingent rent.................... 81 2,148 --
--------- --------- ---------
33,172 35,085 28,727
--------- --------- ---------
Cash provided by operating activities........... 33,962 41,002 19,334
CASH FLOWS FROM INVESTING ACTIVITIES:
Proceeds from sale of property and equipment............ 11,407 6,679 4,107
Purchase of property.................................... (103,484) (202,967) (166,123)
Purchase of machinery and equipment..................... (5,635) (3,467) (1,569)
Purchase deposits (paid) used........................... 8,621 (8,308) 387
Purchase of investments................................. (699) (3,393) (23)
Proceeds from sale of investments....................... 378 -- --
Increase in mortgage loans receivable................... (1,258) (18,450) (6,000)
Reduction of mortgage loans receivable principal........ 1,852 653 53
Increase in notes receivable............................ (14,630) (18,227) (5,072)
Reduction of notes receivable principal................. 4,404 992 200
--------- --------- ---------
Cash used in investing activities............... (99,044) (246,488) (174,040)
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from line of credit............................ 89,971 306,786 133,530
Payments on line of credit.............................. (78,886) (259,995) (113,820)
Distributions to minority interest...................... (3,308) (1,813) (415)
Cash distributions to stockholders/partners............. (26,603) (21,011) (16,555)
</TABLE>
continued on next page
F-7
<PAGE> 31
U.S. RESTAURANT PROPERTIES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOW -- (CONTINUED)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------------
1999 1998 1997
--------- --------- ---------
(IN THOUSANDS)
<S> <C> <C> <C>
Payment of preferred stock dividends.................... $ (7,102) $ (7,675) $ --
Proceeds from sale of common stock/units................ 20,732 35,506 26,188
Proceeds from sale of preferred stock................... -- -- 87,622
Proceeds from sale of minority interest................. 52,793 -- --
Proceeds from notes payable............................. 70,000 158,500 40,000
Payments on notes/mortgage payable...................... (41,576) -- --
Financing costs and other intangibles................... (1,109) (3,110) (952)
Payments on capitalized lease obligations............... (58) (107) (169)
Repurchase and retirement of stock...................... (1,934) (842) --
--------- --------- ---------
Cash flows provided by financing activities..... 72,920 206,239 155,429
--------- --------- ---------
Increase in cash and cash equivalents..................... 7,838 753 723
Cash and cash equivalents at beginning of year............ 1,857 1,104 381
--------- --------- ---------
Cash and cash equivalents at end of year.................. $ 9,695 $ 1,857 $ 1,104
========= ========= =========
SUPPLEMENTAL DISCLOSURE:
Interest paid during the year........................... $ 27,994 $ 15,115 $ 9,073
========= ========= =========
NON-CASH INVESTING ACTIVITIES:
Fair value of stock issued for ownership interest in
another
entity............................................... $ -- $ 621 $ --
Fair value of stock options received.................... -- 469 --
Fair value of stock and units issued for property....... 3,006 955 13,796
Purchase of property under capital lease................ 12 -- --
Deferred gain on sale of property....................... 170 85 52
Deferred rent on sale of property....................... 102 -- --
Notes received on sale of property...................... 2,941 675 1,661
Notes received on sale of investment.................... 1,138 -- --
Reduction in note receivable for property acquired...... -- 11,822 2,061
Reduction in accounts receivable for property
acquired............................................. -- 219 227
Sale of property for account receivable................. -- 589 --
Sale of property on capital lease....................... -- -- 23
Mortgage note assumed................................... -- 1,075 --
Property acquired in exchange for note payable.......... 15,000 6,550 --
Unrealized loss on investments classified as available
for sale............................................. 1,032 797 --
Purchase of net assets of U.S. Restaurant Properties
Development, L.P. ................................... -- 6,381 --
NON-CASH FINANCING ACTIVITIES:
Increase in common stock dividends accrued.............. 1,061 6,180 --
Increase in preferred stock dividends accrued........... -- 1,776 --
Increase in distributions to minority interest
accrued.............................................. 102 500 --
Net transfers from construction in progress to
property............................................. 39,754 -- --
Net transfers from investment in deferred financing
lease to property.................................... 1,634 -- --
</TABLE>
See Notes to Consolidated Financial Statements.
F-8
<PAGE> 32
U.S. RESTAURANT PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. ORGANIZATION
U.S. Restaurant Properties, Inc. (the "Company") is a Maryland corporation
formed to continue the restaurant property management, acquisition and
development operations, related business objectives and strategies of U.S.
Restaurant Properties Master, L.P. (collectively, with its subsidiaries,
"USRP"). The Company became a self-administered real estate investment trust
("REIT") on October 15, 1997 as defined under the Internal Revenue Code of 1986,
as amended. This conversion was effected through the merger (the "Merger") of
USRP Acquisition, L.P. a partnership subsidiary of U.S. Restaurant Properties,
Inc., with and into U.S. Restaurant Properties Master L.P. As a result of the
Merger, all holders of common units ("Units") of beneficial interest in USRP
became stockholders of the Company on a one unit for one share of common stock
basis. Accordingly, information contained in the consolidated financial
statements relating to the equity ownership of USRP following October 15, 1997
is presented as ownership of shares of common stock of the Company.
The Company is authorized to issue up to 100,000,000 shares of common
stock, par value $.001 per share (the "Common Stock"), 50,000,000 shares of
preferred stock, par value $.001 per share (the "Preferred Stock") and
15,000,000 shares of excess stock, par value $.001 per share (the "Excess
Stock"). Pursuant to the Company's Articles of Incorporation (the "Articles"),
any purported transfer of shares of Common Stock or Preferred Stock that would
result in a person owning shares of Common Stock or Preferred Stock in excess of
certain limits set out in the Articles will result in the shares subject to such
purported transfer being automatically exchanged for an equal number of shares
of Excess Stock. On October 30, 1997 the REIT effected a three-for-two stock
split. All of the historical units and per unit information has been restated to
reflect the conversion to Common Stock and this stock split.
In connection with the conversion to a REIT, the management contract
between USRP and QSV Properties Inc. ("QSV"), the former General Partner of
USRP, was terminated. The contract termination and QSV's partnership interests
in USRP were converted to 126,582 shares of Common Stock of the Company and
1,148,418 units of U.S. Restaurant Properties Operating, L.P. ("OP"). An
additional 825,000 shares of Common Stock of the Company or its equivalent in OP
units may be issued to QSV if certain earnings targets are met by the year 2000
(See Note 12). QSV's principal stockholders are Mr. Robert J. Stetson, a member
of the Board of Directors, and Mr. Fred H. Margolin, an executive officer and a
member of the Board of Directors of the Company.
The business and operations of the Company are conducted primarily through
the OP. As of December 31, 1999, the Company owned 92.33 % of and controls the
OP. Each OP unit can only be converted to one share of Common Stock and
participates in any cash distributions made by the OP in an amount equivalent to
a share of Common Stock of the Company. With each exchange of outstanding OP
units for Common Stock, the Company's percentage ownership interest in the OP,
directly or indirectly, will increase. The units do not have voting rights with
respect to the Company and are not traded on an open market.
The Company has 15,404,597 and 14,372,027 shares of Common Stock
outstanding as of December 31, 1999 and 1998, respectively.
2. ACCOUNTING POLICIES
The Company prepares its consolidated financial statement in conformity
with accounting principles generally accepted in the United States of America.
Consolidation
The consolidated financial statements reflect the accounts of the Company,
the OP and their 86 wholly-owned and majority owned subsidiaries after
elimination of all material intercompany transactions.
F-9
<PAGE> 33
U.S. RESTAURANT PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Cash and Cash Equivalents
Cash and cash equivalents include short-term, highly liquid investments
with maturities at the date of purchase of three months or less.
Restricted Cash and Marketable Securities
Restricted cash consists of a security deposit from a tenant that is not
available for operating purposes, and funds held in escrow at various title
companies, some of which are invested in marketable securities at December 31,
1999. The marketable securities are readily convertible to cash. The escrow
balances can be used to purchase certain properties through March, 2000 in
non-taxable transactions under Section 1031 of the Internal Revenue Code. After
March, 2000 the funds held in escrow will be available for operating purposes,
but a taxable gain on prior property sales will be generated.
Rent Recognition
Rent revenues and expenses under operating leases are recognized on a
straight-line basis, unless significant collection problems occur with the
lessee, at which time rents are recorded on a cash basis. Contingent rent is
recognized as revenue after the related lease sales targets are achieved.
In May 1998, the Financial Accounting Standards Board's Emerging Issues
Task Force issued EITF 98-9, "Accounting for Contingent Rent in Interim
Financial Periods," (EITF 98-9), which provided guidance on recognition of
rental income during interim periods for leases which provide for contingent
rents (commonly referred to as "percentage rents"). In accordance with the
initial consensus reached in EITF 98-9, the Company revised its method of
accounting for contingent rent on a prospective basis effective May 21, 1998.
The Securities and Exchange Commissions' Staff Accounting Bulletin No. 101,
which was issued on December 3, 1999, confirmed the consensus originally reached
in EITF 98-9 and required the accounting methodology currently followed by the
Company. Using the historical basis of accounting, net income (loss) allocable
to Common Stockholders and basic and diluted net income (loss) per share amounts
would have been $(6,254,000), $963,000, $(0.42) and $0.07, for the years ended
December 31, 1999 and 1998, respectively.
The pro forma information below was prepared based on management's estimate
for the effects of the change in accounting principle since it is impracticable
to calculate the actual amount on a retroactive basis precisely. Management of
the Company believes that the estimate is not materially different from what
actual results would have been under the new accounting policy. The following is
the pro forma information for the twelve months ended December 31, 1999, 1998
and 1997 as if the Company had changed its revenue recognition policy for
contingent rents on January 1, 1997:
<TABLE>
<CAPTION>
TWELVE MONTHS ENDED DECEMBER 31,
----------------------------------------
1999 1998 1997
---------- --------- -----------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C>
Income (loss) before extraordinary item as reported......... $ 790 $6,107 $ (9,393)
Add: Adjustment for change in accounting policy on
recognition of contingent lease rent...................... 786 1,981 39
------- ------ --------
Income (loss) before extraordinary item as adjusted......... $ 1,576 $8,088 $ (9,354)
======= ====== ========
Net income (loss) as adjusted............................... $ 1,576 $7,898 $ (9,354)
======= ====== ========
Net income (loss) available to common stockholders as
adjusted.................................................. $(5,526) $ 796 $(10,222)
======= ====== ========
Income (loss) per share -- basic and diluted:
Before extraordinary item, less dividends on Preferred
Stock/ General Partner's interest as reported.......... $ (0.42) $(0.07) $ (0.88)
Adjustment for effect of change in accounting policy...... 0.05 0.15 --
------- ------ --------
Income (loss) before extraordinary item, less dividends on
Preferred Stock/General Partner's interest as
adjusted............................................... $ (0.37) $ 0.08 $ (0.88)
======= ====== ========
</TABLE>
F-10
<PAGE> 34
U.S. RESTAURANT PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Depreciation and Amortization
Depreciation is computed using the straight-line method over estimated
useful lives of 6 to 20 years for financial reporting purposes. Deferred
financing costs are amortized using the straight-line method over the life of
the loans (1 to 6 years).
Use of Estimates
The preparation of consolidated financial statements, in conformity with
generally accepted accounting principles, requires management to make estimates
and assumptions that affect reported amounts of certain assets, liabilities,
revenues and expenses as of and for the reporting periods. Actual results may
differ from such estimates.
Construction In Progress
The Company's construction in progress consist of land and improvements for
the development of restaurant, service station and other service retail
properties. The Company currently accumulates costs to develop new retail
properties as construction in progress. These developed properties are
transferred from construction in progress to land, building and improvements
once complete and accounted for under the Company's current property
depreciation policies. In addition, the Company capitalizes interest during the
period of time required to get the retail properties ready for their intended
use. The Company capitalized $1,346,000 and $493,000 of interest in 1999 and
1998, respectively. No interest was capitalized in 1997.
Long-Lived Assets
Long-lived assets include real estate, direct financing leases, and
intangibles which are evaluated on an individual asset basis. The Company's
management routinely reviews its investments for impairment whenever events or
changes in circumstances indicate that the carrying amount of an asset may not
be recoverable. Indicators of possible impairment include default of lease
terms, non-payment or late payment of rents, decreases in the sales levels and
general declines in the success of the operating brand names of its tenants.
When these indicators are present, the Company reviews the circumstances of the
indicator and, if an impairment is likely, secures an appraisal or other
estimate of fair market value of the property affected. During 1999 and 1998,
management reserved $5,000,000 and $127,000 respectively, for certain assets
that had book values in excess of their estimated fair values. (See Note 3 and
11)
An intangible asset was recorded for the excess of cost over the net
investment in direct financing leases in 1986. This intangible asset is being
amortized on a straight-line basis over 40 years. The Company's management
routinely reviews the carrying amount of intangibles based on projected cash
flows. Based on the Company's policy for evaluating impairment of intangibles,
no valuation allowance was recorded for the years ended December 31, 1999, 1998
or 1997.
Concentration of Risk
The Company continues to decrease their concentration of risk by
diversifying the number of restaurant concepts operating on their properties,
with no one concept except Burger King (21%) accounting for more than 9% of the
Company's total properties. The properties are further diversified by the number
of tenants, with no tenant operating more than 9% of the Company's total
properties. Geographically, the Company has properties located in 48 states,
with no state except Texas (31%) accounting for more than 8% of the Company's
properties. The Company has one tenant that operates assets representing more
than 5% of the Company's total real estate assets. The Company's total
investment relating to this tenant consists of approximately $9,853,000 in notes
receivable and $31,728,000 in real estate properties. During the fourth quarter
of 1999, the Company wrote down the notes receivable due from this tenant by
$7,024,000. (See Note 4)
F-11
<PAGE> 35
U.S. RESTAURANT PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Income Taxes
Prior to October 15, 1997 no federal or, in most cases, state income taxes
are reflected in the consolidated financial statements because USRP was not a
taxable entity. The partners reported their allocable shares of taxable income
or loss in their individual income tax returns. The Company elected to be taxed
as a REIT for Federal income tax purposes effective October 15, 1997 as provided
under the Internal Revenue Code of 1986, as amended. As a result, the Company
generally will not be subject to Federal income taxation if it distributes 95%
of its REIT taxable income to its stockholders and satisfies certain other
requirements. The Company believes it qualified as a REIT for the taxable period
ended December 31, 1999 and anticipates that its method of operations will
enable it to continue to satisfy the requirements for such qualification.
Investments
The Company records its investments in debt and marketable equity
securities at their fair value, except for debt securities that the Company
intends to hold to maturity or equity securities that are accounted for under
the equity or cost method which are note readily marketable. The Company has
classified all debt securities as available for sale. The difference between
cost and fair market value of these securities is recorded as a component of
other comprehensive operations.
The equity method is used to account for investments in equity securities
in which the Company has significant influence but does not have controlling
interest, including those investments in which the Company's ownership may be
less than 20%. Investments in equity securities in which the Company has a minor
interest and does not exercise significant influence are accounted for using the
cost method. (See Note 5)
Earnings Per Share of Common Stock
Basic earnings per share are computed based upon the weighted average
number of common shares outstanding. Diluted earnings per share reflects the
dilutive effect of stock options and stock on which the price is guaranteed
("Guaranteed Stock") and on contingent shares or units relating to the
termination of the management contract. These options, Guaranteed Stock and
contingent shares were antidilutive in 1999, 1998 and 1997. In addition,
convertible preferred stock and OP units were antidilutive in 1999, 1998 and
1997. (See Notes 6 and 12)
Equity-Based Compensation
Statement of Financial Accounting Standards ("SFAS") No. 123 establishes a
method of accounting whereby recognized option pricing models are used to
estimate the fair value of equity based compensation, including options. This
Statement also applies to transactions in which an entity issues its equity
instruments to acquire goods or services from non-employees. Those transactions
must be accounted for based on the fair value of the consideration received or
the fair value of the equity instruments issued whichever is more reliably
measurable.
The Company has elected, as provided by SFAS 123, not to recognize
compensation expense for employee equity based compensation as calculated under
SFAS 123, but will recognize any related expense in accordance with the
provisions of APB Opinion No. 25. Disclosure of amounts required by SFAS 123 are
included in Note 6.
Comprehensive Income
Comprehensive income items are revenues, expenses, gains and losses that
under generally accepted accounting principles are excluded from current period
net income and reflected as a component of equity.
F-12
<PAGE> 36
U.S. RESTAURANT PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The Company records comprehensive income related to its unrealized gains and
losses on investments classified as available for sale.
Minority Interest
Minority interest is recorded for the 1,148,418 OP units not owned by the
Company that were issued in conjunction with the conversion to a REIT and the
termination of the management contract (See Note 1). The units are recorded at
carryover basis for the 1% General Partner interest of QSV in the OP and the
fair value of the units ($19.00 based on the market value of a share of Common
Stock at the time of the transaction) for the additional units issued for the
termination of the management contract (See Note 10). In addition, minority
interest is recorded for the 131,915 and 14,254 OP units issued in 1999 and
1998, respectively, in conjunction with certain property acquisitions. These
units were recorded at the fair value of the units on the date of the
transaction based on the market value of a share of Common Stock. Also recorded
as minority interest is the net proceeds from the issuance of $55,000,000 of
8.5% preferred partnership interests issued in 1999 by a subsidiary of the
Company.
Segment Reporting
Under SFAS No. 131, "Disclosures about Segments of an Enterprise and
Related Information", public business enterprises must report financial and
descriptive information about their reportable operating segments. The Company
operates solely in the real estate industry with retail properties (restaurant
and gas stations) under lease on a triple net basis. The Company's real estate
assets are operated with the same long-term objectives and therefore are viewed
as a single operating segment. The Company has no operations outside of the
United States, its country of domicile, accordingly, information related to
geographical operations is not presented.
Environmental Remediation Costs
The Company accrues for losses associated with environmental remediation
obligations when such losses are probable and reasonably estimable. Accruals for
estimated losses from environmental remediation obligations generally are
recognized no later than completion of the remediation feasibility study. Such
accruals are adjusted as further information develops or circumstances change.
Recoveries of environmental remediation costs from other parties are recorded as
assets when their receipt is deemed probable. Under the terms of the Company's
standard lease agreement, the tenant is responsible for environmental
remediation and is required to maintain standard environmental insurance. The
Company's management is not aware of any environmental remediation obligations
which would materially affect the operations, financial position or cash flows
of the Company as of December 31, 1999.
Reclassifications
Certain prior year amounts have been reclassified to conform to the current
year presentation.
New Accounting Pronouncements
In 1998, SFAS No. 133, "Accounting for Derivative Instruments and Hedging
Activities", was issued. This Statement establishes new accounting and reporting
standards for derivative financial instruments and must be adopted no later than
January 1, 2001. The Company is currently evaluating the effect of this
Statement and does not expect it to have a material effect on its results of
operations, financial position or cash flows.
F-13
<PAGE> 37
U.S. RESTAURANT PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
3. PROPERTY
Acquisitions
During 1999, the Company completed the purchase of 106 restaurant and gas
station/convenience store properties for an aggregate purchase price of
$103,109,000 including the value of 131,915 OP units issued as part of the
aggregate purchase price. The 131,915 OP units issued in one transaction have
guaranteed values (See Note 6).
During 1998, the Company completed the purchase of 286 restaurants and gas
station/convenience store properties for an aggregate price of $214,909,000
including the value of 24,768 shares of Common Stock ($600,000) and the value of
14,254 OP Units ($355,000) issued as part of the aggregate purchase price. In
addition, the aggregate purchase price included $17,757,000 representing
property that was under construction at the time of acquisition. The 14,254 OP
Units issued in seven of these transactions have guaranteed values (See Note 6).
During 1997, the Company completed the purchase of 277 restaurant
properties for an aggregate purchase price of $182,396,000 including the value
of 680,696 shares of Common Stock ($13,796,000) issued as part of the aggregate
purchase price. The 680,696 shares of Common Stock issued in two of these
transactions have guaranteed values (See Note 6).
Dispositions
During 1999, the Company sold or disposed of 25 properties of which two
were non-core, for cash of $11,407,000, net of closing costs resulting in a loss
of $379,000. In addition, three properties were sold for notes receivable of
$2,941,000. In accordance with SFAS No. 66, "Accounting for Real Estate Sales",
the Company recorded a deferred gain on sale of $170,000. These notes earn
interest at rates between 9.0% and 10.375% with monthly payments of principal
and interest and balloon payments through 2014.
During 1999, the Company received payment of $688,500 for previously issued
notes related to property sales. In conjunction with the pay off, the Company
recognized previously deferred gains of $214,000.
During 1998, the Company sold or disposed of 12 restaurant properties for
cash of $6,679,000, net of closing costs resulting in a gain of $403,000. In
addition, one restaurant property was sold for cash of $73,000, net of closing
costs and a note receivable of $675,000. The Company recorded a deferred gain on
the sale resulting in a deferred gain of $85,000. The note earns interest at
8.50% with payments of principal and interest due monthly through July 2012.
During 1997, the Company sold five restaurant properties for cash of
$3,960,000, net of closing costs resulting in a gain of $801,000. In addition,
three restaurant properties were sold for cash of $147,000, net of closing costs
and notes receivable of $1,661,000. One note of $972,000 earns interest at 9.25%
with interest only payments due monthly through June 1, 2000, when it matures
and one note of $689,000 earns interest at 9.75% with interest only payments due
monthly through September 1, 2001, when it matures. Each note receivable
requires all unpaid principal balances to be paid on the dates indicated herein.
The Company recorded a deferred gain of $52,000 for the year ended December 31,
1997 as a result of the non-cash property sales.
Property Characteristics
As of December 31, 1999 and 1998, there were 908 and 828 Company sites
respectively, in operation, and there were 12 and 9 unleased sites, respectively
and 14 and 17 sites under development, respectively. The Company continues to
seek suitable tenants for the unleased sites.
F-14
<PAGE> 38
U.S. RESTAURANT PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
In the fourth quarter of 1999, the Company recorded a $5,000,000 asset
impairment reserve related primarily to 34 service stations located in Georgia.
During the fourth quarter, the Company became aware that their tenant for the
properties was experiencing financial difficulties. The Company began working
with the tenant and entered into a memorandum of understanding. Under the
agreement, the Company has several options as it relates to the properties,
including the potential sale of the properties. Based upon this, the Company has
evaluated the amount for which it could sell the properties and has recorded an
impairment reserve. (See Note 11)
In the normal course of business, the Company may sign purchase agreements
to acquire restaurant properties. Such agreements become binding obligations
upon the completion of a due diligence period ranging usually from 15-30 days.
4. OTHER BALANCE SHEET INFORMATION
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------
1999 1998
-------- --------
(IN THOUSANDS)
<S> <C> <C>
Rent and other receivables, net
Accounts receivable and other............................. $ 7,228 $ 7,320
Deferred rent receivable.................................. 7,167 4,564
Less allowance for doubtful accounts...................... (4,347) (1,067)
-------- --------
$ 10,048 $ 10,817
======== ========
Intangibles and other assets, net
Intangibles............................................... $ 27,146 $ 26,894
Less accumulated amortization............................. (16,912) (16,098)
-------- --------
$ 10,234 $ 10,796
======== ========
Accounts payable and accrued liabilities
Accounts payable and accrued payables..................... $ 6,260 $ 6,313
Accrued interest expense.................................. 4,719 3,005
Unearned income........................................... 6,764 2,174
-------- --------
$ 17,743 $ 11,492
======== ========
</TABLE>
During 1999 and 1998, the Company acquired mortgage loans receivable of
$3,202,000 and $18,450,000, respectively secured by first mortgages on real
estate. As of December 31, 1999, the maturity of all notes receivable and
mortgage loan receivable for the next five years is as follows (in thousands):
<TABLE>
<CAPTION>
NOTES MORTGAGE LOANS
RECEIVABLE RECEIVABLE
---------- --------------
<S> <C> <C>
2000........................................................ $ 3,553 $ --
2001........................................................ 53 --
2002........................................................ 413 56
2003........................................................ 925 379
2004........................................................ 1,384 --
Later....................................................... 7,262 24,846
------- -------
13,590 25,281
Less: commitment fees....................................... (26) (604)
Less: allowance for doubtful notes.......................... (1,324) --
------- -------
$12,240 $24,677
======= =======
</TABLE>
F-15
<PAGE> 39
U.S. RESTAURANT PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
During the third and fourth quarters of 1999, the Company's tenant
operating 27 service stations in Hawaii began experiencing significant financial
problems. The Company's total investment relating to this tenant consisted of
approximately $9,853,000 in notes receivable and $31,728,000 in real estate
property. The Company began working with the tenant. In the third quarter of
1999, the Company agreed to a reduction of rent from the tenant and began
recognizing rent and interest income on a cash basis. During the fourth quarter,
as a result of continued financial problems, the Company wrote down the notes
receivable from this tenant by $7,024,000 based on the Company's evaluation of
the collateral value.
Purchase deposits of $209,000 and $8,829,000 at December 31, 1999 and 1998,
respectively, including $20,000 of non-refundable deposits in 1998, are included
in prepaid expenses and purchase deposits in the accompanying balance sheets.
These amounts will be included in the allocation of the purchase price of the
respective properties once acquired or reduced once the deposit is returned.
Non-refundable deposits are expensed once it becomes unlikely that the property
will be acquired.
5. INVESTMENTS
As of December 31, the Company's investment in debt and equity securities
consist of the following:
<TABLE>
<CAPTION>
1999 1998
------ ------
(IN THOUSANDS)
<S> <C> <C>
Debt securities............................................. $1,451 $1,704
Equity method investments................................... 307 439
Cost method investments..................................... 780 914
------ ------
Total investments................................. $2,538 $3,057
====== ======
</TABLE>
As of December 31, 1999 and 1998, the Company's cost method investments
consisted of restricted stock options and equity investments as a limited
partner in real estate partnerships with ownership percentages of generally less
than one percent. The Company's investment in real estate partnerships is so
minor that the Company has virtually no influence over the partnerships
operating and financial polices, and, accordingly is accounting for these
investments under the cost method. The Company's equity investments consisted
primarily of the following:
<TABLE>
<CAPTION>
PERCENTAGE OF
OWNERSHIP
DECEMBER 31,
-------------
1999 1998
----- -----
<S> <C> <C>
Equity investments
U.S. Restaurant Lending GP, Inc.(a)....................... 95% 95%
U.S. Restaurant Lending LP, Inc.(a)....................... 95% 95%
The Anz Company, LLC(b)................................... 15% 15%
</TABLE>
- ---------------
(a) The Company owns 5% of the voting stock and 100% of the nonvoting stock of
U.S. Restaurant Lending GP, Inc. (the "General Partner") and U.S.
Restaurant Lending LP, Inc. (the "Limited Partner"). The Company is
entitled to receive dividends and distributions equally with the voting
stockholders. For the year ended December 31, 1999 and 1998 the Company
recorded 95% of the loss of the General Partner and Limited Partner (See
Note 10).
(b) The Company issued 23,725 shares of Common Stock for a 15% ownership of The
Anz Company, LLC ("Anz") on March 11, 1998. The Company's stock is
guaranteed to have a market value of $26.18 two years from the issue date
(See Note 6). The Company has significant influence but does not have a
controlling interest in Anz. For the year ended December 31, 1999 and 1998
the Company recorded 15% of the income (loss) of Anz.
F-16
<PAGE> 40
U.S. RESTAURANT PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
A summary of unaudited financial information as reported by Anz, Limited
Partner and General Partner as of, and for the year ended December 31 were as
follows (In thousands):
<TABLE>
<CAPTION>
1999 1998
----- -----
<S> <C> <C>
Total assets................................................ $ 327 $ 693
Notes payable............................................... 640 640
Total liabilities........................................... 682 932
Total equity (deficit)...................................... (355) (239)
Net income (loss)(1)........................................ (120) 287
</TABLE>
- ---------------
(1) Net income shown is for period of ownership only.
Investments in debt securities are recorded at fair value in accordance
with SFAS No. 115. The aggregate cost basis and net unrealized loss for these
investments were as follows (in thousands):
<TABLE>
<CAPTION>
COST UNREALIZED FAIR
BASIS LOSS VALUE
------ ---------- ------
<S> <C> <C> <C>
Balance at December 31, 1998............................. $2,501 $ (797) $1,704
Additions.............................................. 779 (1,032)
------ ------- ------
Balance at December 31, 1999............................. $3,280 $(1,829) $1,451
====== ======= ======
</TABLE>
6. GUARANTEED STOCK PRICE AND STOCK OPTIONS
Guaranteed Stock
During 1999, 131,915 OP units were issued to purchase properties in a
single transaction. These properties were recorded at the guaranteed value of
the shares discounted to reflect the present value on the date the shares were
issued. OP units were valued based on the market value of the Company's Common
Stock since each OP unit is exchangeable on a one-to-one basis (See Note 12).
The Company's OP units and Common Stock guarantees can cause more OP units or
Common Stock to be issued to affect the guarantee if the guarantee price is
higher than the market value of the stock according to the provisions of each
guarantee agreement. During 1999, the guarantee on 502,827 shares of common
stock, issued in 1997, terminated under provisions in the guarantee agreement
resulting in the issuance of 105,347 additional shares.
During 1998, 14,254 OP units were issued to purchase seven properties in
seven separate transactions. These properties were recorded at the guaranteed
value of the OP units or Common Stock discounted to reflect the present value on
the date the OP units were issued. OP units were valued based on the market
value of the Company's Common Stock since each OP unit is exchangeable on a
one-to-one basis (See Note 12). In addition, the Company issued 23,725 shares of
Common Stock in 1998 for an equity ownership in The Anz Company LLC.
During 1997, 680,696 shares of Common Stock were issued to purchase 29
properties in two separate transactions. The guarantee on 177,869 shares of
Common stock issued in 1997 has terminated under provisions in the guarantee
agreement without issuance of additional shares.
F-17
<PAGE> 41
U.S. RESTAURANT PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The following table indicates the number of shares/units subject to
guarantees as of December 31, 1999 at which time the Company's stock price was
$14.3125 per share:
<TABLE>
<CAPTION>
OP UNITS OR YEAR YEAR GUARANTEE NUMBER OF SHARE PRICE
COMMON STOCK ISSUED EXPIRES SHARES/UNITS GUARANTEE
- ------------ ------ -------------- ------------ -----------
<S> <C> <C> <C> <C>
OP units................................ 1999 2002 131,915 $23.50
OP units................................ 1998 2000 2,545 $30.00
OP units................................ 1998 2000 667 $29.99
OP units................................ 1998 2000 4,215 $28.00
OP units................................ 1998 2000 6,827 $27.93
Common stock............................ 1998 2000 23,725 $26.18
</TABLE>
Fixed Stock Option Plan
Under the fixed stock plan USRP limited partners on March 17, 1995 granted
QSV options to acquire up to 600,000 shares of Common Stock of the Company,
subject to certain adjustments under anti-dilution provisions. The exercise
price of each option is $10.33 which was the average closing price of the
security on the New York Stock Exchange for the five trading days immediately
after the date of grant. The options are non-transferable and vest and became
exercisable in March 1996. The term of the options expire in March 2005. As of
December 31, 1999, QSV has exercised 514,923 stock options at the option price
of $10.33 for a total purchase price of $5,319,155.
In accordance with SFAS 123, the fair value of each option is estimated on
the date of grant using the binomial option-pricing model with the following
weighted-average assumptions: dividend yield of 7.3 percent for all years;
expected volatility of 17.8 percent, risk free interest rate of 5.7 percent for
the options; and expected lives of 4 years for the plan options. As of March 17,
1995, the 600,000 options had a fair value as of the grant date of $724,000
representing a value per option of $1.21.
Flexible Incentive Plan
Under the Flexible Incentive Plan ("Incentive Plan") adopted in 1998, the
Company may grant stock options to purchase Common Stock of the Company.
Pursuant to this Incentive Plan, stock options may be granted at any time and
the aggregate outstanding options that can be granted shall be at an amount
equal to or less than 4.9% of the Company's issued and outstanding shares of
Common stock at the date of grant. Stock options can be granted only at the fair
market value of the stock at the date of grant. Stock options vest 25% in one
year, 25% in two years and 50% in the third year and expire after ten years from
the date of grant. Options may be exercised through either the payment of cash
or the transfer of shares of the Company's Common Stock owned by the optionee.
The following is a summary of stock option activity for the two years ended
December 31, 1999:
<TABLE>
<CAPTION>
1999 1998
------------------- ------------------
EXERCISE EXERCISE
PRICE NUMBER PRICE NUMBER
-------- -------- -------- -------
<S> <C> <C> <C> <C>
Options outstanding at beginning of year....... $22.00 622,000 $ -- --
Granted...................................... 15.50 370,500 22.00 628,000
Exercised.................................... -- -- -- --
Cancelled.................................... 22.00 (262,000) 22.00 (6,000)
------ -------- ------ -------
Options outstanding at end of year............. $18.70 730,500 $22.00 622,000
====== ======== ====== =======
</TABLE>
There are 311,000 options exercisable as of December 31, 1999. Options
outstanding as of December 31, 1999 had a remaining contractual life of 8.9
years. As of December 31, 1999 and 1998, options to acquire
F-18
<PAGE> 42
U.S. RESTAURANT PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
78,000 and 103,500 shares, respectively, of the Company's Common Stock were
granted to non-employees of the Company. The fair values of these non-employee
options are being expensed over the vesting period. For the years ended December
31, 1999 and 1998, the total amount of expense incurred by the Company was
approximately $38,000 and $65,000, respectively
In accordance with SFAS 123, the fair value of each option is estimated on
the date of grant using the binomial option -- pricing model with the following
weighted-average assumptions: dividend yield of 8.1% and 6.6% for the years
ended December 31, 1999 and 1998; expected volatility of 22.3% and 18.33%, for
the years ended December 31, 1999 and 1998, risk free interest rate of 5.15% and
5.24% for the years ended December 31, 1999 and 1998; and expected lives of 4.5
years.
Under the Incentive Plan, if all options were recorded at fair value rather
than the intrinsic value in accordance with APB No. 25, the Company's net loss
available to Common Stockholders and basic and diluted net loss per share would
have been as follows:
<TABLE>
<CAPTION>
1999 1998
----------- -----------
<S> <C> <C>
Net loss available to Common Stockholders
As reported.............................................. $(6,312,000) $(1,185,000)
Proforma................................................. $(6,429,000) $(1,592,000)
Basic and diluted loss per share
As reported.............................................. $ (0.42) $ (0.09)
Proforma................................................. $ (0.43) $ (0.12)
Stock options:
Compensation value per options granted................... $ 2.26 $ 2.62
Compensation cost........................................ $ 117,000 $ 407,000
</TABLE>
7. LINES OF CREDIT AND NOTES PAYABLE
The Company's debt consisted of the following (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------
1999 1998
-------- --------
<S> <C> <C>
Lines of credit............................................. $147,086 $136,000
======== ========
Notes payable
7 year fixed rate 7.15% senior unsecured notes............ $111,000 $111,000
3 year variable rate unsecured term notes................. 50,000 --
Fixed rate 8.22% senior unsecured notes................... 47,500 47,500
Series A fixed rate 8.06% senior unsecured notes.......... 12,500 12,500
Series B fixed rate 8.30% senior unsecured notes.......... 27,500 27,500
Secured variable rate note payable........................ -- 6,550
-------- --------
Total notes payable............................... $248,500 $205,050
======== ========
Mortgage note payable....................................... $ 1,036 $ 1,062
======== ========
</TABLE>
Lines of Credit
On January 17, 1998 the OP entered into a credit agreement with a syndicate
of banks for an unsecured revolving credit line of $175 million. This credit
agreement replaced the Company's then existing line of credit. As of December
31, 1999, the Company has approximately $7 million available under the unsecured
line of credit. The Company may request advances under this credit agreement to
finance the acquisition of properties, to repair and update properties and for
working capital. This credit agreement expires on
F-19
<PAGE> 43
U.S. RESTAURANT PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
January 15, 2001 and provides that borrowings thereunder bear interest at LIBOR
plus a margin spread which was 1.35% per annum at December 31, 1999 for an
effective interest rate of 7.81%. On February 23, 1999, the OP entered into an
Assignment and Acceptance agreement that became effective on April 12, 1999 upon
execution of the credit agreement with Credit Lyonnais. Under the terms of the
Assignment and Acceptance the OP became a party to the revolving credit
agreement, and accepted the assignment of $10 million of the available credit
line. This agreement effectively reduced the maximum availability under the
revolving credit agreement by $10 million.
On December 31, 1997, $62,996,000 had been drawn on the Company's previous
line of credit. On January 17, 1998, the outstanding balance on this secured
credit facility was repaid with funds from the new unsecured credit agreement
and the facility was terminated. In connection with the termination of the
facility, the related unamortized deferred financing costs were written off and
recorded as an extraordinary loss of $190,000.
On December 15, 1998 the Company entered into a short term secured
borrowing facility ("PAC Facility") for $20 million. This PAC Facility was used
in 1999 to acquire property. As of December 31, 1999, the Company had repaid the
Facility.
Notes Payable
On February 26, 1997, the Company issued $40,000,000 in privately placed
debt which consists of $12,500,000 Series A Senior Secured Guaranteed Notes with
a 8.06% interest rate, due January 31, 2000; and $27,500,000 Series B Senior
Secured Guaranteed Notes with a 8.30% interest rate, due January 31, 2002. In
January, 1998, the note holders agreed to release the collateral for these
notes.
On May 12, 1998 the Company issued $111,000,000 of seven year fixed rate
senior unsecured notes payable in a private placement. The notes bear interest
at the rate of 7.15% per annum and are due May 1, 2005. The net proceeds of the
notes were used to repay a portion of the revolving credit agreement and for
general corporate purposes. In conjunction with the notes payable agreement, the
underwriters and the Company entered into a rate lock agreement for the purpose
of setting the interest rate on these notes payable. The fee paid to lock in the
rate on these notes payable was approximately $424,000 and is being amortized
over the term of the notes as an adjustment to interest expense.
On November 13, 1998, the Company issued $47,500,000 in senior notes
payable in a private placement. The notes bear interest at the rate of 8.22% per
annum and are due August 1, 2003. The net proceeds were used to repay a portion
of the revolving credit agreement and for general corporate purposes. In
conjunction with the notes payable agreement, the underwriters and the Company
entered into a rate lock agreement for the purpose of setting the interest rate
on these notes payable. The fee paid to lock in the rate on these notes payable
was approximately $406,000 and is being amortized over the term of the notes as
an adjustment to interest expense.
On August 10, 1998, the Company assumed a mortgage note payable as part of
an office building acquisition. The mortgage bears interest at a rate of 8.00%
per annum with payments of principal and interest due monthly through June 2007.
As of December 31, 1999 the balance is $1,036,000.
On December 30, 1998, the Company financed part of a property acquisition
with the seller in the amount of $6,550,000. The note bore interest at the rate
of prime plus 1% per annum and was repaid in two installments of $3,275,000 plus
accrued interest on June 15, 1999 and December 30, 1999.
On April 12, 1999, the OP entered into an unsecured credit agreement with
Credit Lyonnais ("CLNY Agreement") under which the OP could borrow up to a
maximum of $50 million on or before July 9, 1999. As of December 31, 1999, the
Company has borrowed the total $50 million under the CLNY Agreement. The note
provides that borrowings bear interest at the then current LIBOR plus a margin
spread ranging from
F-20
<PAGE> 44
U.S. RESTAURANT PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
2.00% to 2.75%, dependent on a leverage ratio formula, and matures on April 11,
2002. At December 31, 1999 the margin spread was 2.75% which resulted in an
effective interest rate of 8.19%.
The Company is in compliance with all covenants associated with its debt
and credit facilities as of December 31, 1999.
Principal debt maturities
Lines of credit and notes payable principal debt maturities for the next
five years at December 31, 1999 are as follows (in thousands):
<TABLE>
<S> <C>
2000..................................................... $ 12,529
2001..................................................... 147,117
2002..................................................... 77,534
2003..................................................... 47,536
2004..................................................... 39
Later.................................................... 111,867
--------
Total.......................................... $396,622
========
</TABLE>
8. INVESTMENTS AND COMMITMENTS AS LESSOR
The Company leases land and buildings to the operators of a variety of
national and regional fast food chain and casual dining restaurants. The
building portion of these leases on 64 of these properties, which are leased by
BKC franchisees, is accounted for as direct financing leases while the land
portion is accounted for as an operating lease. These leases generally provide
for a term of 20 years from the opening of the related restaurant, and do not
contain renewal options. The Company, however, has agreed to renew a franchise
lease if BKC or any of the other franchise chains renews or extends the lessee's
franchise agreement.
As of December 31, 1999, the remaining lease terms of all leases ranged
from one to 25 years and include various renewal options. The leases provide for
minimum rents and contingent rents based on a percentage of each restaurant's
sales, and requires the franchisee to pay executory costs.
<TABLE>
<CAPTION>
DIRECT OPERATING
FINANCING LEASES LEASES
---------------- ----------
<S> <C> <C>
Minimum future lease receipts for years ending December 31
are as follows (in thousands):
2000...................................................... $1,910 $ 73,026
2001...................................................... 1,267 71,872
2002...................................................... 760 71,095
2003...................................................... 269 68,939
2004...................................................... 108 67,506
Later..................................................... 95 755,860
------ ----------
Total............................................. $4,409 $1,108,298
====== ==========
</TABLE>
F-21
<PAGE> 45
U.S. RESTAURANT PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
<TABLE>
<CAPTION>
DECEMBER 31,
-----------------
1999 1998
------- -------
<S> <C> <C>
Net investment in direct financing leases (in thousands):
Minimum future lease receipts............................. $ 4,409 $ 7,329
Estimated unguaranteed residual values.................... 3,334 5,051
Unearned amount representing interest..................... (1,702) (2,702)
------- -------
Total............................................. $ 6,041 $ 9,678
======= =======
</TABLE>
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------
1999 1998 1997
------- ------- -------
<S> <C> <C> <C>
Rental income (in thousands):
Minimum rental income..................................... $65,895 $47,081 $25,433
Contingent rental income.................................. 6,107 4,751 5,355
------- ------- -------
Total $72,002 $51,832 $30,788
======= ======= =======
</TABLE>
If Burger King properties are not adequately maintained during the term of
the tenant leases, the 208 such properties may have to be rebuilt before the
leases can be renewed, either by the Company as it considers necessary or
pursuant to Burger King's successor policy. The successor policy, which is
subject to change from time to time at Burger King's discretion, is intended to
encourage the reconstruction, expansion, or other improvement of older Burger
King restaurants and generally affects properties that are more than ten years
old or are the subject of a franchise agreement that will expire within five
years.
Under the current OP agreement, Burger King can require that a restaurant
property be rebuilt. If the tenant does not elect to undertake the rebuilding,
the Company would be required to make the required improvement itself. However,
as a condition to requiring the Company to rebuild, Burger King would be
required to pay the Company its percentage share ("Burger King's Percentage
Share") of the rebuilding costs. Such percentage share would be equal to (i) the
average franchise royalty fee percentage rate payable to Burger King with
respect to such restaurant, divided by (ii) the aggregate of such average
franchise royalty fee percentage rate and the average percentage rate payable to
the Partnership with respect to such restaurant property. The Company believes
that Burger King's Percentage Share of the rebuilding costs would typically be
29% for a restaurant property.
Management believes it is unlikely that any material amount of rebuilding
of Burger King restaurant properties will be required in the next several years,
if ever.
To encourage the early renewal of existing leases/subleases, the Company
recently established an "early renewal program" whereby the Company has offered
to certain tenants the right to renew existing leases/subleases for up to an
additional 20 years in consideration for remodeling financing. The purpose of
this program is to extend the term of existing leases/subleases prior to the end
of the lease term and enhance the value of the underlying property to the
Company. As of December 31, 1999, the Company has extended the lease term on 26
leases/subleases as a result of remodel grants and lease riders. During 1999 and
1998, the Company paid remodeling costs of $516,000 and $488,000, respectively,
in conjunction with this Program.
9. COMMITMENTS
The land at 102 restaurant properties and the land and buildings at 39
restaurant properties are leased by the Company from third party lessors. The
building portions of the leases are generally capital leases while the land
portions are operating leases. These leases provide for an original term of 20
years and most are renewable at the Company's option. As of December 31, 1999,
the remaining lease terms (excluding renewal option terms) expire from one to 20
years. If all renewal options are taken into account, the terms expire from one
to
F-22
<PAGE> 46
U.S. RESTAURANT PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
33 years. Rents payable may escalate during the original lease and renewal
terms. For eight properties, the leases provide for contingent rent based on
each restaurant's sales.
<TABLE>
<CAPTION>
CAPITAL OPERATING
LEASES LEASES
------- ---------
(IN THOUSANDS)
<S> <C> <C>
Minimum future lease obligations for years ending December
31 are as follows:
2000...................................................... $16 $ 4,291
2001...................................................... 1 3,846
2002...................................................... -- 3,377
2003...................................................... -- 2,493
2004...................................................... -- 2,135
Later..................................................... -- 10,225
--- -------
Total minimum obligations(a)...................... 17 $26,367
=======
Amount representing interest.............................. --
---
Present value of minimum obligations...................... $17
===
</TABLE>
- ---------------
(a) Minimum lease obligations have not been reduced by minimum sublease
rentals.
<TABLE>
<CAPTION>
YEARS ENDED
DECEMBER 31,
------------------
1999 1998 1997
---- ---- ----
(IN THOUSANDS)
<S> <C> <C> <C>
Rental expense
Minimum rental expense.................................... $575 $388 $297
Contingent rental expense................................. 78 101 54
---- ---- ----
Total............................................. $653 $489 $351
==== ==== ====
</TABLE>
On October 15, 1997, the Company entered into four-year employment
agreements with its two executive officers for which the aggregate compensation
of the two executive officers is $500,000 per year. Under such agreements, the
Company is liable for the compensation benefits for three years of the
agreements if an executive officer were to be terminated without cause, as
defined. On October 6, 1999, the Company and Robert Stetson entered into a
Settlement Agreement and Mr. Stetson resigned as President and Chief Executive
Officer. Under the terms of this agreement, Mr. Stetson received a severance
payment of $750,000 and the Company is required to provide a loan of up to
$800,000 to be used for the purpose of purchasing the stock of the Company which
would be pledged as security for the loan. At the same time Mr. Stetson and the
Company entered into a consulting agreement requiring the Company to pay a
consulting fee of $100,000 over a period of one year in exchange for services
performed by Mr. Stetson.
The Company has entered into commitments for development of certain
restaurant, gas station/convenience store properties. As of December 31, 1999,
the Company had commitments totaling approximately $11,781,000 representing
construction contract costs not yet incurred.
On April 10, 1999 the Company acquired 27 service stations properties in a
single transaction for approximately $32,338,000. Under the terms of the
purchase and sale agreement, the Company may be required to pay up to $2,300,000
of additional consideration on February 15, 2001. The actual amount of
additional consideration will be calculated by multiplying the volume in gallons
of gasoline sold for the years 1999 and 2000 in excess of 24,200,000 gallons,
times $1.77.
F-23
<PAGE> 47
U.S. RESTAURANT PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The Company is subject to various legal proceedings in the ordinary course
of business. The resolution of these matters cannot be predicted with any
certainty, but, management believes the final outcome of such matters will not
have a material effect on the financial position, results of operations or cash
flows of the Company.
10. RELATED PARTY TRANSACTIONS
Prior to October 15, 1997, the Managing General Partner of USRP was
responsible for managing the business and affairs of USRP. USRP paid the
Managing General Partner a non-accountable annual allowance (adjusted annually
to reflect increases in the Consumer Price Index and additions to the property
portfolio), plus reimbursement of out-of-pocket costs incurred to other parties
for services rendered to USRP. The allowance for the period January 1, 1997 to
October 15, 1997 was $1,826,000. The Managing General Partner paid no
out-of-pocket costs to other parties on behalf of USRP during 1997.
USRP compensated the Managing General Partner for its efforts and increased
internal expenses with respect to additional properties acquired. USRP paid the
Managing General Partner, with respect to each additional property purchased:
(i) a one-time acquisition fee equal to one percent of the purchase price for
such property and (ii) an annual fee equal to one percent of the purchase price
for such property, adjusted for increases in the Consumer Price Index. For 1997
the one-time acquisition fee equaled $1,401,000, which was capitalized, and the
increase in the non-accountable annual fee equaled $498,000. In addition, if the
Rate of Return (as defined) on the Partnership's equity on all additional
properties exceeded 12 percent per annum for any fiscal year, the Managing
General Partner was paid an additional fee equal to 25 percent of the cash flow
received with respect to such additional properties in excess of the cash flow
representing a 12 percent Rate of Return thereon. There was no fee paid in 1997.
These fees were discontinued with the termination of the management contract
between QSV and USRP on October 15, 1997 (See Note 12).
The Managing General Partner of Arkansas Restaurants #10 L.P. ("ARK #10")
is owned by a former officer and current member of the Board of Directors of the
Company who receives no compensation for this role. The Managing General Partner
owns 100% of the outstanding equity interest in ARK #10. As of December 31, 1999
and 1998, a note receivable of $1,187,000 and $454,000 were due from ARK #10,
respectively. The note receivable is due on July 1, 2016 and has an interest
rate of 9.0% per annum. As of December 31, 1999 and 1998, tenant and other
receivables from Ark #10 were $291,000 and $678,000, respectively. As of
December 31, 1999, the Company has recorded an allowance for uncollectability
for these receivables of $1,257,000. During 1999, the Company entered into a new
lease and note agreement with ARK #10 under the terms of which ARK #10 makes
reduced monthly rent payments, and makes monthly note payments of both interest
and principal. ARK #10 is current on these payments as of March, 2000.
The Managing General Partner of Southeast Fast Food Partners, L.P.("SFF")
is owned by an officer of the Company. As of December 31, 1999, the Managing
General Partner owns 100% of the outstanding equity interest of SFF. As of
December 31, 1999 and 1998, a note receivable of $358,000 and $1,070,000 were
due from SFF, respectively. The note receivable is due on July 15, 2000 and has
an interest rate of 9.0% per annum. As of December 31, 1999, an allowance for
uncollectability has been recorded for the full amount of this note receivable.
As of December 31, 1998, notes receivable of $136,000 were due from the owners
of SFF one of which is an officer of the Company. At December 31, 1998, tenant
and other receivables from SFF were $979,000. On July 15, 1999, SFF sold their
interest in the operations on 23 properties owned by the Company to a third
party. The master lease between SFF and the Company was terminated and a new
master lease was entered into with the new operator. Subsequently, all balances
were paid by SFF including the amounts due from the limited partners of SFF.
After July 15, 1999, SFF continued to operate one property as a quick service
restaurant. The start-up of this operation and the payment of certain
outstanding obligations of SFF were financed by the note receivable outstanding
at December 31, 1999.
F-24
<PAGE> 48
U.S. RESTAURANT PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
In April 1998, the Company agreed to make available to U.S. Restaurant
Properties Development Company, LP ("Development Co.") a line of credit of up to
$15,000,000 with interest only payments due on November 1, 1998, and on each
anniversary thereof throughout the term of the note with all outstanding
principal and accrued but unpaid interest due on October 31, 2001, when it
matured. The assets of Development Co. were acquired during 1998 in settlement
of the outstanding note and the revolving line of credit was terminated.
On April 29, 1998, two affiliates of the Company, U.S. Restaurant Lending
GP, Inc. (the "General Partner") and U.S. Restaurant Lending LP, Inc. (the
"Limited Partner") (See Note 5) entered into joint venture and limited
partnership agreements with MLQ Investors, L.P., an affiliate of Goldman, Sachs
& Co., to form two limited partnerships. The two limited partnerships engage in
lending activities to owners and operators of quick service franchises and gas
station/convenience store outlets. The Company has indirect ownership interests
(through the General Partner and Limited Partner interests it owns) of 71.25%
and 47.5%, respectively, in these two partnerships. As of December 31, 1999 and
1998, the Company had other receivables (payables) from the two lending
partnerships of $(13,000) and $306,000, respectively, and a note receivable of
$640,000 from the General Partner and Limited Partner in both years. Officers of
the Company own 95% of the voting stock of the General Partner and the Limited
Partner.
On March 11, 1998, the Company issued 23,725 shares of common stock for a
15% ownership interest in The Anz Company, LLC (ANZ). During 1999 and 1998, ANZ
provided services for the Company. These services represented approximately 9%
of ANZ's total revenues.
In 1998, eleven restaurant properties were acquired from Apple South, Inc.,
a Georgia corporation. The operations on these properties were purchased by an
entity which is owned by a director of the Company. The Company has entered into
a lease agreement with this director's entity that purchased the operations on
these eleven properties. In 1997, two sale/leaseback transactions were completed
by the Company with Carlos O'Kelly's, Inc. Carlos O'Kelly's, Inc. is owned by a
director of the Company. As of December 31, 1999 and 1998, no balances were
outstanding from this related party.
11. SUBSEQUENT EVENTS
Subsequent to December 31, 1999, as part of a potential lease workout with
one of the Company's service station tenants, the Company issued an irrevocable
standby letter of credit in the amount of $750,000, against which the
beneficiary may present drafts if the current tenant defaults on payment terms
for the purchase of gasoline. Under the terms of the letter of credit, after
April 28, 2000 the beneficiary will reimburse the Company for one half of any
drafts presented against the letter of credit. Subsequently, in conjunction with
the termination of this lease the Company has issued an indemnification of the
previous tenant from specific claims which could total up to $600,000, and
guaranteed the payments for the new tenant's gasoline purchases. The Company has
notified the previous tenant that failure on their part to comply with the terms
of the indemnification, has rendered it invalid and is no longer binding on the
Company.
Subsequent to December 31, 1999, the Company terminated its lease with one
of its restaurant tenants, from which the Company could incur charges up to
$867,000 in the first quarter of 2000, pending valuation of equipment assumed in
the agreement.
12. STOCKHOLDERS' EQUITY, MINORITY INTEREST AND PARTNERS' CAPITAL
Common Stock
On October 15, 1997, the Company effected the conversion of USRP into a
self-administered and self-managed REIT. As a result of the Merger, USRP became
a subsidiary of the Company and, at the effective time of the Merger, all
holders of units of beneficial interest of USRP became stockholders of the
Company. Accordingly, information contained in these consolidated financial
statements related to the equity ownership
F-25
<PAGE> 49
U.S. RESTAURANT PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
of USRP following October 15, 1997 is presented as ownership of shares of Common
Stock of the Company. On October 30, 1997 the Company effected a three-for-two
stock split. All of the historical Units and per unit information has been
restated to reflect this stock split and conversion of the units to Common
Stock.
Minority Interest
In connection with the conversion to a REIT, the management contract
between QSV and USRP was terminated. The contract termination and QSV's
partnership interests in USRP were converted to 126,582 shares of Common Stock
of the Company and 1,148,418 units of the OP. The OP units represent a minority
interest in the OP of the REIT. Each OP unit participates in any income (loss)
of the OP based on the percent ownership in the OP and receives a cash dividend
in an amount equivalent to a share of Common Stock. Each OP unit may be
exchanged by the holder thereof for one share of Common Stock of the Company.
With each exchange of outstanding OP units for Common Stock, the Company's
percentage ownership interest in the OP, directly or indirectly, will increase.
An additional 825,000 shares of Common Stock of the Company or its equivalent in
OP units may be issued to QSV if certain earnings targets are met by the year
2000. These earnings targets are based upon what QSV would have received under
their prior management contract. As of December 31, 1999, the Company has
accrued approximately $11,808,000 (based on the market value of a share of the
Company's Common Stock at December 31, 1999) representing 825,000 OP units based
on earnings targets that have been met. The 825,000 OP units have not been
issued and will not participate in any income (loss) or receive any
distributions from the OP until such units are issued. In addition to the OP
units and Common Stock issued in 1997 relating to the termination of the
management contract, the Company also issued 131,915 and 14,254 OP units for the
purchase of property during the twelve months ended December 31, 1999 and 1998,
respectively.
During 1999, the Company issued $55,000,000 of 8.5% preferred interest in
USRP/HCI Partnership 1, L.P. ("HJV"), a subsidiary of the Company, to a third
party for net proceeds of $52,793,000. Under the terms of this transaction, the
preferred interest holder receives annual distributions equal to $4,675,000
payable quarterly from the cash flows of HJV. Income is allocated to the
preferred interest holder equal to their distribution. The OP units outstanding
at December 31, 1999 of 1,294,587 and the preferred partnership interests
represent the minority interest.
Minority interest in the OP consists of the following at December 31, 1999
and 1998 (in thousands):
<TABLE>
<S> <C>
Balance at January 1, 1998................................ $19,536
Market value of contingent shares earned................ 12,047
OP units issued for property............................ 355
Distributions paid...................................... (1,813)
Distributions declared.................................. (500)
Loss allocated to minority interest..................... (58)
-------
Balance at December 31, 1998.............................. 29,567
Change in market value of contingent shares earned...... (239)
Preferred partnership interest issued, net of costs..... 52,793
OP units issued for property............................ 2,407
Distributions paid...................................... (3,308)
Distributions declared.................................. (102)
Income allocated to minority interest................... 567
-------
$81,685
=======
</TABLE>
F-26
<PAGE> 50
U.S. RESTAURANT PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Shelf Registrations
On August 22, 1997, the Company filed a shelf registration statement to
register shares of Common or Preferred Stock for sale in the amount of
$150,000,000. The amount of securities available for sale under this shelf
registration statement at December 31, 1999 is $3,310,000.
On October 30, 1998, the Company filed a shelf registration for
$175,000,000 to register shares of Common and Preferred Stock for sale. The
amount of securities available for sale under this shelf registration statement
at December 31, 1999 is $175,000,000.
Preferred Stock
On November 12, 1997, the Company sold 3,680,000 shares of Series A
Cumulative Convertible Preferred Stock ("Series A") with a liquidation
preference of $25.00 per share under the August 22, 1997 shelf registration
statement. The Series A Preferred Stock is not redeemable prior to November 15,
2002. On and after November 15, 2002, the Series A Preferred Stock is
redeemable, in whole or in part, at the option of the Company (i) for such
number of shares of Common Stock as are issuable at a conversion rate of .9384
shares of Common Stock for each share of Series A Preferred Stock, provided that
for 20 trading days within any period of 30 consecutive trading days, including
the last trading day of such period, the closing price of the Common Stock on
the New York Stock Exchange equals or exceed the Conversion Price, subject to
adjustment in certain circumstances, plus cash in the amount of any accrued and
unpaid dividends, or (ii) for cash at a redemption price equal to $25.00 per
share of Series A Preferred Stock, plus any accrued and unpaid dividends. The
Series A Preferred Stock has no stated maturity and is not subject to a sinking
fund. Shares of Series A are convertible, in whole or in part, at the option of
the holder at any time, unless previously redeemed, into shares of Common Stock
at a conversion price of $26.64 per share of Common Stock (equivalent to a
conversion rate of .9384 shares of Common Stock). Distributions on Series A are
cumulative and are equal to the greater of (i) $1.93 per annum or (ii) the cash
distribution paid or payable on the number of shares of Common Stock into which
a share of Series A is convertible. As of December 31, 1999, 62 Series A shares
have been converted into Common Stock. Holders of Preferred Stock are entitled
to receive dividends in preference to any dividends to Common Stockholders or OP
unit holders.
Distributions to Common and Preferred Stockholders
For the year ended December 31, 1999, the Company paid distributions of
$29,911,000 to its Common Stockholders and the minority interests (or $1.79 per
share of Common Stock/unit), of which 80% represented a return of capital and
20% represented ordinary taxable dividend income. As of December 31, 1999,
$8,939,000 of dividends have been declared to be paid on Preferred and Common
Stock outstanding to stockholders and minority interests OP unitholders of
record on March 1, 2000.
Distributions and Allocations to Unitholders
Under the amended USRP partnership agreement, cash flow from operations and
net proceeds from capital transactions of USRP each year were distributed 98.02%
to the unitholders and 1.98% to the general partners for the period January 1,
1996 through October 15, 1997 (date of REIT conversion).
All operating income and loss of USRP for each year generally was allocated
among the partners in the same aggregate ratio as cash flow was distributed for
that year. Gain and loss from a capital transaction was generally allocated
among the partners in the same aggregate ratio as proceeds of the capital
transactions were distributed except to the extent necessary to reflect capital
account adjustments. For the period January 1, 1997 to October 15, 1997
distributions to USRP unitholders amounted to $12,016,000.
F-27
<PAGE> 51
U.S. RESTAURANT PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
13. SUPPLEMENTAL CASH FLOW INFORMATION
During the year ended December 31, 1998 the Company had the following
additional non-cash investing activity related to the purchase of net assets of
U.S. Restaurant Properties Development, L.P.:
<TABLE>
<CAPTION>
1998
--------------
(IN THOUSANDS)
<S> <C>
Rent and other receivables............................. $ 193
Prepaid and other assets............................... 524
Property............................................... 5,716
Accounts payable....................................... (52)
------
Note receivable........................................ $6,381
======
</TABLE>
14. FAIR VALUE DISCLOSURE OF FINANCIAL INSTRUMENTS
The following disclosure of estimated fair value was determined by the
Company using available market information and appropriate valuation
methodologies. However, considerable judgment is necessary to interpret market
data and develop the related estimates of fair value. Accordingly, the estimates
presented herein are not necessarily indicative of the amounts that could be
realized upon disposition of the financial instruments. The use of different
market assumptions and/or estimation methodologies may have a material effect on
the estimated fair value amounts.
Cash and cash equivalents, receivables (including deferred rent receivable)
and accounts payable (including deferred rent payable) are carried at cost that
approximates their fair value based on their short term, highly liquid nature.
The line of credit is carried at an amount that approximates fair value because
it represents short term variable rate debt.
Notes and mortgage loan receivables totaling $36,917,000 and $31,500,000 as
of December 31, 1999 and 1998, respectively, have a fair value of $34,834,000
and $34,211,000, respectively, based upon interest rates for notes with similar
terms and remaining maturities.
Cost method investments totaling $780,000 and $914,000 as of December 31,
1999 and 1998 have a fair value of $993,000 and $849,000, respectively, based on
publicly traded share prices for publicly traded investments and prices recently
paid by the Company and/or published market values if available for private
investments.
Notes and mortgage loan payable totaling $249,536,000 and $206,112,000 as
of December 31, 1999 and 1998, respectively, have a fair value of $243,841,000
and $214,988,000, respectively based upon interest rates for notes with similar
terms and remaining maturities.
The fair value estimates presented herein are based on information
available to management as of December 31, 1999 and 1998. Although management is
not aware of any factors that would significantly affect the estimated fair
value amounts, such amounts have not been comprehensively revalued for purposes
of these consolidated financial statements since that date, and current
estimates of fair value may differ significantly from the amounts presented
herein.
15. EMPLOYEE BENEFIT PLAN
Effective October 15, 1997, the U.S. Restaurant Properties, Inc. 401(k)
plan (the "Plan") was established as a savings plan for the Company's employees.
The Plan is a voluntary defined contribution plan. Employees are eligible to
participate in the Plan on the earlier of January 1, April 1, July 1 and October
1 immediately following the later of the (i) six months after their first day of
employment with the Company or (ii) the date an employee attains the age of 21,
as defined. Each participant may make contributions to the
F-28
<PAGE> 52
U.S. RESTAURANT PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Plan by means of a pre-tax salary deferral in an amount up to 15% of the
participant's annual compensation (not to exceed $10,000 per annum for 1999).
The Company will match up to 25% of participating annual employee contributions.
The Company's matching contributions are made in Company Stock, which is
purchased by the Plan on the open market, and are subject to specified
years-of-service for vesting of the Company's portion of contributions to the
Plan. Employer contributions of approximately $57,000, $25,000 and $7,000 have
been paid or accrued for the years ended December 31, 1999, 1998 and 1997,
respectively.
16. PRO FORMA (UNAUDITED)
The following pro forma information was prepared by adjusting the actual
consolidated results of the Company for the years ended December 31, 1999 and
1998 for the effects of:
a. the purchase of 107 properties on various dates during 1999 for an
aggregate purchase price of $103,109,000 including the value of 131,915 OP
Units issued to sellers; and the sale of 28 properties for $17,401,000;and
the net transfer of $27,512,000 of completed properties from construction
in progress and other related financing transactions including the sale of
1,010,000 shares of Common Stock for $20,506,000; and
b. the purchase of 286 properties on various dates during 1998 for an
aggregate purchase price of $214,909,000 including the value of 24,768
shares of Common Stock and 14,254 OP units issued to sellers; and the sale
of 12 properties for $8,174,000 and other related financing transactions
including the sale of 1,359,063 shares of Common Stock for $32,407,000.
These pro forma results are not necessarily indicative of what the actual
results of operations of the Company would have been assuming all of the
properties were acquired as of January 1, 1997 and do not purport to represent
the results of operations for future periods.
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31,
-----------------
1999 1998
------- -------
(IN THOUSANDS)
<S> <C> <C>
Total Revenues.............................................. $83,020 $82,196
======= =======
Net income.................................................. $ 1,733 $11,623
Dividends on Preferred Stock/General Partner interest....... (7,102) (7,102)
------- -------
Net income (loss) allocable to Common shareholders/unit
holders................................................... $(5,369) $ 4,521
======= =======
Net income (loss) per share/unit
Basic..................................................... $ (0.34) $ 0.29
Diluted................................................... $ (0.34) $ 0.28
Weighted average shares/units outstanding
Basic..................................................... 15,380 15,367
Diluted................................................... 15,380 16,052
</TABLE>
F-29
<PAGE> 53
U.S. RESTAURANT PROPERTIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
17. SUMMARY BY QUARTER (UNAUDITED) (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
QUARTER
--------------------------------------- TOTAL
FIRST SECOND THIRD FOURTH YEAR
------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
1999
Revenues............................ $18,742 $20,569 $20,480 $19,826 $79,617
Net income (loss)................... 2,510 3,693 5,022 (10,435)(a)(d) 790(a)
Income (loss) allocable to Common
stockholders..................... 734 1,918 3,246 (12,210) (6,312)
Earnings (loss) per common share(c)
Basic net income (loss) per
share.......................... $ 0.05 $ 0.13 $ 0.21 $ (0.79) $ (0.42)
Diluted net income (loss) per
share.......................... $ 0.05 $ 0.13 $ 0.20 $ (0.79) $ (0.42)
1998
Revenues............................ $12,546 $13,534 $13,845 $15,936 $55,861
Net income (loss)................... 4,404 4,862 (653)(b) (2,696)(b) 5,917(b)
Income (loss) allocable to Common
stockholders..................... 2,628 3,086 (2,429) (4,470) (1,185)
Earnings (loss) per common share(c)
Basic net income (loss) per
share.......................... $ 0.20 $ 0.24 $ (0.18) $ (0.31) $ (0.09)
Diluted net income (loss) per
share.......................... $ 0.20 $ 0.23 $ (0.18) $ (0.31) $ (0.09)
</TABLE>
- ---------------
(a) Includes $(3,867) and $(239) in the fourth quarter and year, respectively,
relating to the contingent shares of Common Stock or OP units the Company
will have to issue in 2001 based upon transactions to date for the
termination of the management contract with QSV.
(b) Includes $4,991, $7,056, and $12,047 in the third and fourth quarter and
year, respectively, relating to the contingent shares of Common Stock or OP
units the Company will have to issue in 2001 based upon transactions to
date for the termination of the management contract with QSV.
(c) Due to the significant variances between quarters in net income and
weighted average shares outstanding, the combined quarterly income (loss)
per share does not equal the reported income (loss) per share for 1998 or
1999.
(d) Results of the fourth quarter 1999 may not be comparable to other quarters
because of significant charges recorded relating to the write-down of notes
receivable of $7,024 recording of an asset impairment charge of $5,000 and
the recording of severance charges of $750 related to the resignation of
the Company's President.
F-30
<PAGE> 54
U.S. RESTAURANT PROPERTIES, INC.
SCHEDULE OF REAL ESTATE AND ACCUMULATED DEPRECIATION
AS OF DECEMBER 31, 1999
<TABLE>
<CAPTION>
INITIAL COST TO COMPANY AND ACCUMULATED DEPRECIATION
GROSS AMOUNT AT DECEMBER 31, 1999 AT DECEMBER 31, 1999
NO. OF ------------------------------------------- -------------------------------
STORE TYPE PROPERTIES LAND BUILDINGS EQUIPMENT TOTAL BUILDINGS EQUIPMENT TOTAL
- ---------- ---------- -------- --------- --------- -------- --------- --------- -------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Applebee's........... 12 $ 1,943 $ 9,962 $ -- $ 11,905 $ 692 $ -- $ 692
Arby's............... 80 11,019 38,249 183 49,451 5,014 17 5,031
Bruegger's Bagel..... 17 2,204 8,942 -- 11,146 1,226 -- 1,226
Burger King.......... 201 35,622 65,156 273 101,051 11,598 106 11,704
Chevron.............. 8 3,823 6,256 280 10,359 408 32 440
Chili's.............. 8 4,202 7,983 -- 12,185 1,377 -- 1,377
Citgo................ 2 -- 1,786 -- 1,786 89 -- 89
Conoco............... 34 8,759 23,826 114 32,699 1,196 21 1,217
Dairy Queen.......... 41 2,908 8,628 875 12,411 1,865 459 2,324
Denny's.............. 5 682 1,919 109 2,710 128 20 148
El Chico............. 22 8,502 19,685 -- 28,187 1,984 -- 1,984
Embers............... 8 901 2,248 447 3,596 262 149 411
Fina................. 53 5,115 15,518 -- 20,633 833 -- 833
Grandy's............. 30 12,758 -- -- 12,758 --
Hardee's............. 26 3,332 14,590 1,736 19,658 3,049 792 3,841
Kettle............... 24 2,433 5,888 -- 8,321 493 -- 493
KFC.................. 4 590 1,539 -- 2,129 180 -- 180
Exxon Mobil.......... 5 2,326 3,566 -- 5,892 210 -- 210
Phillip 66........... 10 1,775 2,223 1,667 5,665 158 290 448
Pizza Hut............ 21 1,975 6,284 -- 8,259 1,004 -- 1,004
Popeye's............. 24 3,831 10,088 -- 13,919 855 -- 855
Schlotzsky's......... 28 6,990 14,141 -- 21,131 1,201 -- 1,201
Taco Bell............ 5 441 679 -- 1,120 79 -- 79
Wendy's.............. 8 1,360 2,949 54 4,363 345 15 360
Other Brands......... 254 87,485 137,905 7,797 233,187 11,972 1,262 13,234
--- -------- -------- ------- -------- ------- ------ -------
930 $210,976 $410,010 $13,535 $634,521 $46,218 $3,163 $49,381
=== ======== ======== ======= ======== ======= ====== =======
</TABLE>
- ---------------
(1) Substantially all property is restaurant/service station property.
(2) Substantially all property is unsecured except for one office building that
is secured by a $1,062,000 mortgage note payable.
(3) Depreciation is computed over the estimated useful life of 15 to 20 years
for the restaurant buildings and improvements and 7 years for the restaurant
equipment.
(4) Burger King restaurant properties include the land values of 64 restaurant
properties in which the building and improvements are accounted for as
direct financing leases.
(5) Transactions in real estate and equipment and accumulated depreciation
during 1999 and 1998 are summarized below.
(6) The 930 properties include the 944 (934 core business properties, 8
billboard Properties, one terminal and one office building) less 14
properties currently under development.
S-1
<PAGE> 55
<TABLE>
<CAPTION>
COST DEPRECIATION
-------- ------------
<S> <C> <C>
Balance, December 31, 1997.................................. $325,528 $13,438
Acquisitions.............................................. 204,944 --
Cost of real estate sold.................................. (7,447) (325)
Depreciation expense...................................... -- 14,825
Asset impairment.......................................... (127) --
-------- -------
Balance, December 31, 1998.................................. 522,898 27,938
Acquisitions.............................................. 103,230 --
Cost of real estate sold.................................. (15,739) (1,437)
Depreciation expense...................................... -- 22,880
Asset impairment.......................................... (5,000) --
Transfer from direct financing leases..................... 1,634 --
Transfer from construction in progress.................... 27,498 --
-------- -------
$634,521 $49,381
======== =======
</TABLE>
S-2
<PAGE> 56
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
-------
<C> <S>
10.1 -- Credit Agreement dated April 12, 1999 between U.S.
Restaurant Properties Operating L.P. and Credit Lyonnais
New York Branch for a term loan of $50,000,000 due April
11, 2002.
12.1 -- Ratios of Earnings to Combined Fixed Charges and
Preferred Stock Dividends
21.1 -- U.S. Restaurant Properties, Inc. List of Subsidiaries as
of December 31, 1999
23.1 -- Independent Auditors' Consent dated March 29, 2000 from
Deloitte & Touche LLP.
27.1 -- Financial Data Schedule
</TABLE>
<PAGE> 1
EXHIBIT 10.1
[LOGO]
CREDIT AGREEMENT
between
U.S. RESTAURANT PROPERTIES OPERATING L.P.,
as Borrower
and
CREDIT LYONNAIS NEW YORK BRANCH,
as Agent
$50,000,000
APRIL 12, 1999
------------------------------------
PREPARED BY HAYNES AND BOONE, L.L.P.
------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
SECTION 1 DEFINITIONS AND TERMS.....................................................1
1.1 DEFINITIONS......................................................1
1.2 TIME REFERENCES.................................................19
1.3 OTHER REFERENCES................................................19
1.4 ACCOUNTING PRINCIPLES...........................................19
SECTION 2 LOAN.....................................................................20
2.1 COMMITMENT......................................................20
2.2 MANNER OF BORROWING.............................................20
2.3 MINIMUM LOAN AMOUNTS............................................21
2.4 FUNDING.........................................................21
2.5 INTEREST RATE...................................................22
2.6 DETERMINATION OF RATE...........................................22
SECTION 3 PAYMENT TERMS............................................................22
3.1 PROMISSORY NOTES................................................22
3.2 PAYMENT OF OBLIGATIONS..........................................22
3.3 PAYMENTS ON THE NOTES...........................................23
3.4 CANCELLATION OF AVAILABLE COMMITMENT............................23
3.5 VOLUNTARY PREPAYMENTS...........................................23
3.6 MANDATORY PREPAYMENTS...........................................24
3.7 TAXES...........................................................24
3.8 LENDING OFFICE..................................................25
3.9 AGENT FEES......................................................26
3.10 COMMITMENT FEE..................................................26
3.11 MAXIMUM INTEREST RATE...........................................26
SECTION 4 SPECIAL PROVISIONS FOR EURODOLLAR LOANS..................................26
4.1 INADEQUACY OF EURODOLLAR LOAN PRICING...........................26
4.2 ILLEGALITY......................................................26
4.3 INCREASED COSTS FOR EURODOLLAR LOANS............................27
4.4 EFFECT ON EURODOLLAR LOANS AND FLOATING BASE LOANS..............27
4.5 PAYMENTS NOT AT END OF INTEREST PERIOD..........................27
4.6 INDEMNITY.......................................................28
SECTION 5 CONDITIONS PRECEDENT.....................................................28
SECTION 6 REPRESENTATIONS AND WARRANTIES...........................................28
6.1 REPRESENTATIONS AND WARRANTIES OF BORROWER......................28
6.2 ORGANIZATION; POWERS............................................28
6.3 AUTHORITY.......................................................29
6.4 SUBSIDIARIES....................................................29
6.5 NO CONFLICT.....................................................30
6.6 GOVERNMENTAL CONSENTS...........................................30
</TABLE>
(i)
<PAGE> 3
<TABLE>
<S> <C>
6.7 GOVERNMENTAL REGULATION.........................................30
6.8 FINANCIAL POSITION..............................................30
6.9 INDEBTEDNESS....................................................31
6.10 LITIGATION; ADVERSE EFFECTS.....................................31
6.11 NO MATERIAL ADVERSE EFFECT......................................31
6.12 TAX EXAMINATIONS................................................31
6.13 PAYMENT OF TAXES................................................31
6.14 PERFORMANCE.....................................................32
6.15 DISCLOSURE......................................................32
6.16 REQUIREMENTS OF LAW.............................................32
6.17 ENVIRONMENTAL MATTERS...........................................32
6.18 ERISA...........................................................34
6.19 SECURITIES ACTIVITIES...........................................35
6.20 SOLVENCY........................................................35
6.21 INSURANCE.......................................................35
6.22 REIT STATUS.....................................................35
6.23 OWNERSHIP OF PROPERTY...........................................35
6.24 SENIOR INDEBTEDNESS.............................................35
SECTION 7 REPORTING COVENANTS......................................................35
7.1 BORROWER ACCOUNTING PRACTICES...................................35
7.2 FINANCIAL REPORTS...............................................36
7.3 EVENTS OF DEFAULT...............................................38
7.4 LAWSUITS........................................................38
7.5 INSURANCE.......................................................39
7.6 ERISA NOTICES...................................................39
7.7 ENVIRONMENTAL NOTICES...........................................40
7.8 LABOR MATTERS...................................................41
7.9 NOTICES OF ASSET SALES AND/OR ACQUISITIONS......................41
7.10 TENANT NOTIFICATIONS............................................41
7.11 NOTIFICATION OF CHANGES TO OTHER CREDIT FACILITIES..............41
7.12 SUPPLEMENTS TO SCHEDULES........................................41
7.13 OTHER REPORTS...................................................41
7.14 OTHER INFORMATION...............................................41
SECTION 8 AFFIRMATIVE COVENANTS....................................................42
8.1 EXISTENCE. ETC..................................................42
8.2 POWERS; CONDUCT OF BUSINESS.....................................42
8.3 COMPLIANCE WITH LAWS, ETC.......................................42
8.4 PAYMENT OF TAXES AND CLAIMS.....................................42
8.5 INSURANCE.......................................................42
8.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS..........43
8.7 ERISA COMPLIANCE................................................43
8.8 MAINTENANCE OF PROPERTY.........................................43
8.9 COMPANY STATUS..................................................43
8.10 OWNERSHIP OF PROPERTY...........................................43
8.11 CHANGES TO OTHER CREDIT FACILITIES..............................43
8.12 GAS STATION SUBSIDIARIES........................................43
</TABLE>
(ii)
<PAGE> 4
<TABLE>
<S> <C>
SECTION 9 NEGATIVE COVENANTS.......................................................44
9.1 INDEBTEDNESS....................................................44
9.2 SALES OF ASSETS.................................................45
9.3 LIENS...........................................................45
9.4 INVESTMENTS.....................................................45
9.5 CONDUCT OF BUSINESS.............................................46
9.6 TRANSACTIONS WITH PARTNERS AND AFFILIATES.......................46
9.7 RESTRICTION ON FUNDAMENTAL CHANGES..............................47
9.8 MARGIN REGULATIONS; SECURITIES LAWS.............................47
9.9 ERISA...........................................................47
9.10 ORGANIZATIONAL DOCUMENTS........................................47
9.11 FISCAL YEAR.....................................................48
9.12 OTHER FINANCIAL COVENANTS.......................................48
9.13 PRO FORMA ADJUSTMENTS...........................................49
SECTION 10 EVENTS OF DEFAULT........................................................49
10.1 EVENTS OF DEFAULT...............................................49
10.2 RIGHTS AND REMEDIES.............................................52
SECTION 11 AGENT....................................................................53
11.1 APPOINTMENT AND AUTHORIZATION...................................53
11.2 RELIANCE ON AGENT...............................................53
11.3 AGENT IN ITS INDIVIDUAL CAPACITY................................54
11.4 NOTE HOLDERS....................................................54
11.5 CONSULTATION WITH PROFESSIONALS.................................54
11.6 DOCUMENTS.......................................................54
11.7 RESIGNATION OF AGENT AND SUCCESSOR AGENTS; REMOVAL..............54
11.8 RESPONSIBILITY OF AGENT.........................................54
11.9 ADMINISTRATION OF AGREEMENT.....................................55
11.10 NOTICE OF EVENT OF DEFAULT......................................56
11.11 INDEPENDENT INVESTIGATION.......................................56
11.12 SHARING OF OFFSETS..............................................56
11.13 SHARING OF PAYMENTS.............................................56
11.14 REPURCHASE......................................................56
11.15 INDEMNIFICATION.................................................57
11.16 BENEFIT OF SECTION..............................................57
SECTION 12 MISCELLANEOUS............................................................57
12.1 PAYMENT OF EXPENSES; INDEMNITY..................................57
12.2 NON-BUSINESS DAYS...............................................58
12.3 COMMUNICATIONS..................................................58
12.4 FORM AND NUMBER OF DOCUMENTS....................................59
12.5 EXCEPTIONS TO COVENANTS.........................................59
12.6 SURVIVAL........................................................59
12.7 GOVERNING LAW...................................................59
</TABLE>
(iii)
<PAGE> 5
<TABLE>
<S> <C>
12.8 INVALID PROVISIONS..............................................59
12.9 PARTIES BOUND; ASSIGNMENT.......................................59
12.10 FORUM, CONSENT TO SERVICE AND JURISDICTION, AND JURY TRIAL......60
12.11 ENTIRETY........................................................60
12.12 AMENDMENTS, CONSENTS, CONFLICTS, AND WAIVERS....................60
12.13 MULTIPLE COUNTERPARTS...........................................60
12.14 HEADINGS........................................................61
12.15 PARTIES.........................................................61
</TABLE>
(iv)
<PAGE> 6
SCHEDULES AND EXHIBITS
<TABLE>
<S> <C>
Schedule 5 - Closing Conditions
Schedule 6.4 - Subsidiaries
Schedule 6.9 - Indebtedness
Schedule 6.10 - Litigation
Schedule 6.17 - Environmental Matters
Schedule 6.18 - ERISA
Schedule 6.21 - Insurance
Exhibit A - Promissory Note
Exhibit B - Assignment and Acceptance Agreement
Exhibit C - Request for Borrowing
Exhibit D - Quarterly/Annual Compliance Certificate
Exhibit E - Sample Calculations
Exhibit F - Gas Station Subsidiary Lease Provisions
Exhibit G - Guaranty
Exhibit G-1 - Subsidiary Guaranty
Exhibit H - Opinion of Borrower's Counsel
</TABLE>
(v)
<PAGE> 7
CREDIT AGREEMENT
This CREDIT AGREEMENT ("AGREEMENT") is made as of April 12, 1999, among
U.S. RESTAURANT PROPERTIES OPERATING L.P., a Delaware limited partnership
("BORROWER"), the banks and financial institutions listed on the signature pages
hereof as the initial lenders, CREDIT LYONNAIS NEW YORK BRANCH ("CLNY"), a duly
licensed branch under the New York Banking Law of a foreign banking corporation
organized under the laws of the Republic of France, as agent and a lender
(together with any successor appointed pursuant to SECTION 11 below, "AGENT"),
and each financial institution assigned an interest herein from time to time
pursuant to SECTION 12.9(c) hereof, as evidenced by an Assignment and Acceptance
Agreement, as lenders (together with the initial lenders and Agent, "LENDERS";
each individually, "LENDER").
Borrower has requested from Lenders the extension of a multiple advance
term loan to finance Borrower's general corporate purposes. Lender has agreed to
provide such a loan upon the terms and subject to the conditions of the Loan
Documents (defined below).
Accordingly, for sufficient consideration, Borrower and Agent agree as
follows:
SECTION 1 DEFINITIONS AND TERMS
1.1 DEFINITIONS. As used in the Loan Documents:
"AFFILIATE," as applied to any Person, means any other Person that
directly or indirectly controls, is controlled by, or is under common control
with, that Person. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to vote fifteen percent (15%) or more of the equity
Securities having voting power for the election of directors of such Person or
otherwise to direct or cause the direction of the management and policies of
that Person, whether through the ownership of voting equity Securities or by
contract or otherwise.
"AGENT" is defined in the preamble hereof.
"AGREEMENT" is defined in the preamble hereof.
"ANNUAL EBITDA" means, with respect to any Property, other than a
Nonrecourse Debt Property, as of the first day of each fiscal quarter for the
immediately preceding fiscal quarter, annualized, an amount equal to: (a) total
revenues relating to such Property for such period; less (b) total operating
expenses relating to such Property for such period (it being understood that the
foregoing calculation shall exclude interest, taxes (other than real estate
taxes), depreciation, amortization and other non-cash charges as determined in
accordance with GAAP and shall be adjusted for non-recurring items such as sales
of Properties (or portions thereof) or Minority Holdings (other than Nonrecourse
Debt Properties) and shall be further adjusted so as to net out any non-cash
revenue attributable to the straight-lining of rents in accordance with GAAP) .
Each of the foregoing amounts shall be determined by reference to each
Borrower's Statement of Operations for the applicable periods. An example of the
foregoing calculation is set forth on EXHIBIT E hereto.
<PAGE> 8
"ANNUAL OPERATING BUDGET" means an annual cash budget of income,
operating expenses and capital expenditures for the Consolidated Businesses,
specifying by month in reasonable detail all such income and expenses.
"ASSIGNEE" is defined in SECTION 12.9(c).
"ASSIGNMENT AND ACCEPTANCE AGREEMENT" means an Assignment and
Acceptance Agreement substantially in the form attached hereto as EXHIBIT B.
"AUTHORIZED FINANCIAL OFFICER" means a chief executive officer, chief
financial officer, treasurer or other qualified senior officer of Borrower
acceptable to Agent.
"AVAILABLE COMMITMENT" means the Maximum Commitment minus the total
outstanding principal amount of all Loans.
"BORROWER PARTNERSHIP AGREEMENT" means the Agreement of Limited
Partnership of Borrower as such agreement may be amended, restated, modified or
supplemented from time to time.
"BORROWING DATE" means, for any Loan, the date the Loan is made.
"BUSINESS DAY" means a day other than a Saturday, Sunday, or other day
on which commercial banks in New York City are authorized or required by Law to
close.
"CAPITAL EXPENDITURES" means, for any period, the aggregate of all
expenditures (whether payable in cash or other Property or accrued as a
liability (but without duplication)) during such period that, in conformity with
GAAP, are required to be included in or reflected by Borrower's or any
Subsidiary's fixed asset accounts as reflected in any of their respective
balance sheets; provided, however, (a) Capital Expenditures shall include,
whether or not such a designation would be in conformity with GAAP: (i) that
portion of Capital Leases which is capitalized on the consolidated balance sheet
of Borrower and the Subsidiaries; and (ii) expenditures for Equipment which is
purchased simultaneously with the trade-in of existing Equipment owned by
Borrower or any Subsidiary, to the extent the gross purchase price of the
purchased Equipment exceeds the book value of the Equipment being trade in at
such time; and (b) Capital Expenditures shall exclude, whether or not such a
designation would be in conformity with GAAP, expenditures made in connection
with the restoration of Property, to the extent reimbursed or financed from
insurance or condemnation proceeds. Capital Expenditures shall not include any
such expenditures incurred in connection with a Nonrecourse Debt Property.
"CAPITAL LEASE" means any lease of any property (whether real, personal
or mixed) by a Person as lessee which, in conformity with GAAP, is accounted for
as a capital lease on the balance sheet of that Person.
"CAPITAL STOCK" means, with respect to any Person, any capital stock of
such Person, regardless of class or designation, and all warrants, options,
purchase rights, conversion or exchange rights, voting rights, calls or claims
of any character with respect thereto.
"CAPITALIZATION VALUE" means the sum of: (a) the quotient of: (i) the
Combined EBITDA for the fiscal quarter then ended, annualized; divided by (ii)
10%; (b) Cash and Cash Equivalents, and (c) Construction Asset Cost; provided,
however, that for purposes of calculating Capitalization Value, Combined EBITDA
attributable to leasing commissions and/or management fees shall not exceed five
percent (5%) of total combined EBITDA.
2
<PAGE> 9
"CASH AND CASH EQUIVALENTS" means: (a) cash; (b) marketable direct
obligations issued or unconditionally guaranteed by the United States government
and backed by the full faith and credit of the United States government; and (c)
domestic and Eurodollar certificates of deposit and time deposits, bankers'
acceptances and floating rate certificates of deposit issued by Agent, any
Lender or other commercial bank organized under the laws of the United States,
any state thereof, the District of Columbia, any foreign bank, or its branches
or agencies (fully protected against currency fluctuations), which, at the time
of acquisition, such other commercial bank is rated A-l (or better) by S&P or
P-l (or better) by Moody's; provided that the maturities of such Cash and Cash
Equivalents shall not exceed one year.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C.A. Section 9601 et seq, any successor
statutes, and any regulations or guidance promulgated thereunder.
"CERCLIS" means the Comprehensive Environmental Response, Compensation,
and Liability Information System.
"CLNY" is defined in the preamble hereof.
"CLAIM" means any claim or demand, by any Person, of whatsoever kind or
nature for any alleged Liabilities and Costs, whether based in contract, tort,
implied or express warranty, strict liability, criminal or civil statute,
Permit, ordinance or regulation, common law or otherwise.
"CLOSING DATE" means the Business Day on which all conditions precedent
in the Loan Documents have been satisfied or waived in writing.
"COMBINED EBITDA" means the sum of: (a) 100% of the Annual EBITDA from
the Consolidated Businesses with respect to Properties wholly-owed by any of the
Consolidated Businesses (other than Nonrecourse Debt Properties); and (b) the
portion of the Annual EBITDA of the Minority Holdings, other than Limited
Minority Holdings, allocable to the Consolidated Businesses in accordance with
GAAP.
"COMBINED EQUITY VALUE" means Capitalization Value minus Total Adjusted
Outstanding Indebtedness.
"COMBINED INTEREST EXPENSE" means, for any period, the sum of: (a)
interest expense of the Consolidated Businesses paid during such period; (b)
interest expense of the Consolidated Businesses accrued for such period (other
than interest expense in connection with Nonrecourse Debt with respect to a
Nonrecourse Debt Property); (c) the portion of the interest expense of Minority
Holdings, other than Limited Minority Holdings, allocable to Borrower in
accordance with GAAP (it being understood that if the applicable Indebtedness
shall be recourse to Borrower in connection with the Minority Holding
Indebtedness, then 100% of the interest expense shall be allocable to Borrower)
and paid during such period; and (d) the portion of the interest expense of
Minority Holdings, other than Limited Minority Holdings, allocable to Borrower
in accordance with GAAP and accrued for such period, in each case including
participating interest expense but excluding extraordinary interest expense, and
net of amortization of deferred costs associated with new financings or
refinancings of existing Indebtedness.
3
<PAGE> 10
"COMMITMENT" means, for each Lender, the amount set forth opposite its
signature on this Agreement or on its Assignment and Acceptance Agreement, as
the same may be reduced from time to time by: (a) expiration pursuant to SECTION
2.1; (b) termination by Agent upon the occurrence of an Event of Default or a
Potential Event of Default; (c) further assignment by such Lender pursuant to
SECTION 12.9(c); or (c) cancellation by Borrower pursuant to SECTION 3.4.
"COMMITMENT FEE" is defined in SECTION 3.10.
"COMMITMENT TERMINATION DATE" means the earliest of: (a) July 9, 1999;
(b) the date upon which Agent terminates the Available Commitment after the
occurrence of an Event of Default or a Potential Event of Default; or (c) the
date upon which Borrower cancels the Available Commitment pursuant to SECTION
3.4.
"CONSEQUENTIAL LOSS" means, with respect to Borrower's payment of all
or any portion of the then-outstanding principal amount of any Eurodollar Loan
on a day other than the last day of the Interest Period related thereto, any
loss, cost, or expense incurred by Lenders, or any of them, as a result of the
timing of such payment or in re-depositing such principal amount, including the
sum of: (a) the interest that, but for such payment, Lenders, or any of them,
would have earned in respect of such principal amount so paid, for the remainder
of the Interest Period applicable to such sum, reduced, if Lenders, or any of
them, are able to re-deposit such principal amount so paid for the balance of
such Interest Period, by the interest earned by Lenders, or any of them, as a
result of so re-depositing such principal amount; and (b) any expense or penalty
incurred by Lenders, or any of them, on re-depositing such principal amount.
"CONSOLIDATED" means consolidated in accordance with GAAP.
"CONSOLIDATED BUSINESSES" means Borrower and its wholly-owned
Subsidiaries.
"CONSTRUCTION ASSET COST" means, with respect to Property on which
construction of improvements has commenced (such commencement evidenced by
foundation excavation) but has not yet been completed (as such completion shall
be evidenced by such Property being fully leased and opened for business to the
general public), the aggregate sums expended on the construction of such
improvements (including land acquisition costs).
"CONTINGENT OBLIGATION" as to any Person means, without duplication:
(a) any contingent obligation of such Person required to be shown on such
Person's balance sheet in accordance with GAAP; and (b) any obligation required
to be disclosed in the footnotes to such Person's financial statements in
accordance with GAAP, guaranteeing partially or in whole any non-recourse
Indebtedness, lease, dividend or other obligation, exclusive of contractual
indemnities (such contractual indemnities to include, without limitation, any
indemnity or price-adjustment provision relating to the purchase or sale of
securities or other assets) and guarantees of non-monetary obligations (other
than guarantees of completion) which have not yet been called on or quantified,
of such Person or of any other Person. The amount of any Contingent Obligation
described in CLAUSE (b) above shall be deemed to be: (a) with respect to a
guaranty of interest or interest and principal, or operating income guaranty,
the sum of all payments required to be made thereunder (which in the case of an
operating income guaranty shall be deemed to be equal to the debt service for
the note secured thereby), calculated at the interest rate applicable to such
Indebtedness, through: (i) in the case of an interest or interest and principal
guaranty, the stated date of maturity of the obligation (and commencing on the
date interest could first be payable thereunder); or (ii) in the case of an
operating income guaranty, the date through which such guaranty will remain in
effect; and (b) with respect to all guarantees not covered by the preceding
CLAUSE (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such guaranty is made or, if not stated or
determinable, the
4
<PAGE> 11
maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) as recorded on the balance sheet and
on the footnotes to the most recent financial statements of the applicable
Borrower required to be delivered pursuant hereto. Notwithstanding anything
contained herein to the contrary, guarantees of completion shall not be deemed
to be Contingent Obligations unless and until a claim for payment has been made
thereunder, at which time any such guaranty of completion shall be deemed to be
Contingent Obligations in an amount equal to any such claim. Subject to the
preceding sentence, (a) in the case of a joint and several guaranty given by
such Person and another Person (but only to the extent such guaranty is
recourse, directly or indirectly to the applicable borrower), the amount of the
guaranty shall be deemed to be 100% thereof unless and only to the extent that:
(i) such other Person has delivered Cash or Cash Equivalents to secure all or
any part of such Person's guaranteed obligations; or (ii) such other Person
holds an Investment Grade Credit Rating from both Moody's and S&P; and (b) in
the case of a guaranty, (whether or not joint and several) of an obligation
otherwise constituting Debt of such Person, the amount of such guaranty shall be
deemed to be only that amount in excess of the amount of the obligation
constituting Indebtedness of such Person. Notwithstanding anything contained
herein to the contrary, "CONTINGENT OBLIGATION" shall not be deemed to include
guaranties of loan commitments or of construction loans to the extent the same
have not been drawn.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any provision
of any Securities issued by that Person or any indenture, mortgage, deed of
trust, security agreement, pledge agreement, guaranty, contract, undertaking,
agreement or instrument to which that Person is a party or by which it or any of
its properties is bound, or to which it or any of its properties is subject.
"CONTROLLED GROUP" means: (a) the controlled group of corporations as
defined in Section 1563 of the Internal Revenue Code; or (b) the group of trades
or businesses under common control as defined in Section 414(c) of the Internal
Revenue Code, of which Borrower is a part or may become a part.
"CONVERSION DATE" is defined in SECTION 2.2(d).
"CONVERSION NOTICE" is defined in SECTION 2.2(d).
"CURRENT FINANCIALS" means either: (a) Borrower's consolidated and
consolidating Financial Statements for the year ended December 31, 1998,
together with Borrower's consolidated Financial Statements for the three months
ended on December 31, 1998; or (b) at any time after annual Financial Statements
are first delivered under SECTION 7.2, Borrower's consolidated and consolidating
annual Financial Statements then-most-recently delivered to Lender under SECTION
7.2(a), together with Borrower's consolidated quarterly Financial Statements
then-most-recently delivered to Lender under SECTION 7.2(b).
"CURRENT PARTY" is defined in SECTION 11.14.
"CUSTOMARY PERMITTED LIENS" means:
(a) Liens (other than Environmental Liens and Liens in favor
of the PBGC) with respect to the payment of taxes, assessments or
governmental charges in all cases which are not yet due or which are
being contested in good faith by appropriate proceedings in accordance
with SECTION 9.4 and with respect to which adequate reserves or other
appropriate provisions are being maintained in accordance with GAAP;
5
<PAGE> 12
(b) statutory Liens of landlords against any Property of
Borrower or any Subsidiary and Liens against any Property of Borrower
or any Subsidiary in favor of suppliers, mechanics, carriers,
materialmen, warehousemen or workmen and other Liens against any
Property of Borrower or any Subsidiary imposed by law created in the
ordinary course of business for amounts which, if not resolved in favor
of Borrower or such Subsidiary, could not result in a Material Adverse
Effect;
(c) Liens (other than any Lien in favor of the PBGC) incurred
or deposits made in the ordinary course of business in connection with
worker's compensation, unemployment insurance or other types of social
security benefits or to secure the performance of bids, tenders, sales,
contracts (other than for the repayment of borrowed money), surety,
appeal and performance bonds; provided, however, (i) all such Liens do
not in the aggregate materially detract from the value of Borrower's or
such Subsidiary's assets or Property or materially impair the use
thereof in the operation of their respective businesses; and (ii) all
Liens of attachment or judgment and Liens securing bonds to stay
judgments or in connection with appeals do not secure at any time an
aggregate amount of recourse Indebtedness exceeding $2,500,000; and
(d) Liens against any Property of Borrower or any Subsidiary
arising with respect to zoning restrictions, easements, licenses,
reservations, covenants, rights-of-way, utility easements, building
restrictions and other similar charges or encumbrances on the use of
Real Property which do not interfere with the ordinary conduct of the
business of Borrower or any Subsidiary to the extent it could not
result in a Material Adverse Effect.
"DOL" means the United States Department of Labor and any successor
thereto.
"DEBTOR LAWS" means all applicable liquidation, conservatorship,
bankruptcy, moratorium, arrangement, receivership, insolvency, reorganization or
similar Laws from time to time in effect affecting the rights of creditors
generally.
"DEFAULT RATE" means, on any day, an annual interest rate equal to the
lesser of: (a) the sum of 2.0% plus the Floating Base Rate; or (b) the Maximum
Rate.
"DISTRIBUTION" means, with respect to any shares of any capital stock
or other equity securities issued by a Person: (a) the retirement, redemption,
purchase, or other acquisition for value of those securities; (b) the
declaration or payment of any dividend on or with respect to those securities;
(c) any loan or advance by that Person to, or other investment by that Person
in, the holder of any of those securities; and (d) any other payment by that
Person with respect to those securities.
"DOLLARS" and "$" each means lawful currency of the United States of
America.
"ENVIRONMENTAL COMPLAINT" means any complaint, order, citation, or
notice issued to Borrower with regard to any alleged violation of requirements
of Environmental Laws relating to air emissions, water discharges, Release, or
disposal of any Hazardous Material, noise emissions, or any other environmental,
health, or safety matter affecting Borrower.
"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" means all
Requirements of Law derived from or relating to any federal, state or local law,
ordinance, rule, regulation, Permit, license or other binding determination of
any Governmental Authority relating to, imposing liability or standards
concerning, or otherwise addressing the environment, health and/or safety,
including, but not limited the Clean Water Act, CERCLA,
6
<PAGE> 13
RCRA, any so-called "Superfund" or "Superlien" law, the Toxic Substances Control
Act and OSHA, and public health codes, each as from time to time in effect.
"ENVIRONMENTAL LAWS" means: (a) CERCLA; (b) the Resource Conservation
and Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments
of 1984, 42 U.S.C.A. Section 6901 et seq.; (c) the Clean Air Act, 42 U.S.C.A.
Sections 7401 et seq., as amended by the Clean Air Act Amendments of 1990; (d)
the Clean Water Act of 1977, 33 U.S.C.A. Section 1251 et seq.; (e) the Toxic
Substances Control Act, 15 U.S.C.A. Section 2601 et seq.; (f) the Hazardous
Materials Transportation Act, 42 U.S.C.A. Section 1801 et seq.; and (g) all
other federal, state, and local Laws relating to pollution, health, and safety,
or protection of the environment, including, without limitation, air pollution,
water pollution, noise control, or the use, handling, discharge, disposal,
transportation, Release, or recovery of on-site or off-site Hazardous Materials.
"ENVIRONMENTAL LIABILITY" means any claim, demand, obligation, cause of
action, order, violation, damage (including without limitation, to any Person,
property or natural resources), injury, judgment, penalty or fine, cost of
enforcement, cost of remedial action, clean-up, restoration, or any other cost
or expense whatsoever (including reasonable attorneys' fees and disbursements)
resulting from the actual or alleged violation of any Environmental Law, the
imposition of any Environmental Lien, or otherwise arising under any
Environmental Law or resulting from any common Law cause of action asserted by
any Person.
"ENVIRONMENTAL LIEN" means a Lien in favor of any Governmental
Authority for any: (a) liabilities under any Environmental, Health or Safety
Requirement of Law; or (b) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of
Hazardous Material.
"ENVIRONMENTAL PROPERTY TRANSFER ACT" means any applicable Requirement
of Law that conditions, restricts, prohibits or requires any notification or
disclosure triggered by the transfer, sale, lease or closure of any Property or
deed or title for any Property for environmental reasons, including, but not
limited to, any so-called "Environmental Cleanup Responsibility Act"or
"Responsible Property Transfer Act".
"EPA" means the United States Environmental Protection Agency.
"EQUIPMENT" means equipment used in connection with the maintenance of
Properties.
"ERISA" means the Employee Retirement Income Security Act of 1974, 29
U.S.C. Sections 1000 et. seq. any amendments thereto, any successor statutes,
and any regulations or guidance promulgated thereunder.
"ERISA AFFILIATE" means: (a) any corporation which is a member of the
same controlled group of corporations (within the meaning of Section 414(b) of
the Internal Revenue Code) as Borrower; (b) a partnership or other trade or
business (whether or not incorporated) which is under common control (within the
meaning of Section 414(c) of the Internal Revenue Code) with Borrower; and (c) a
member of the same affiliated service group (within the meaning of Section
414(m) of the Internal Revenue Code) as Borrower, any corporation described in
CLAUSE (a) above or any partnership or trade or business described in CLAUSE (b)
above.
"ERISA TERMINATION EVENT" means: (a) a Reportable Event with respect to
any Plan; (b) the withdrawal of Borrower or any ERISA Affiliate from a Plan
during a plan year in which Borrower or such ERISA Affiliate was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA or the cessation of
operations which results in the termination of employment of 20% of Plan
participants who are employees of Borrower or any ERISA Affiliate; (c) the
imposition of an obligation on Borrower or any ERISA Affiliate under Section
4041
7
<PAGE> 14
of ERISA to provide affected parties written notice of intent to terminate a
Plan in a distress termination described in Section 4041(c) of ERISA; (d) the
institution by the PBGC of proceedings to terminate a Plan; (e) any event or
condition which might constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan; or (f)
the partial or complete withdrawal of Borrower or any ERISA Affiliate from a
Multiemployer Plan.
"EURODOLLAR BUSINESS DAY" means a Business Day on which dealings in
Dollars are carried out in the London interbank Eurodollar market.
"EURODOLLAR LOAN" means a Loan or Rollover made hereunder which is one
of a group of Loans and Rollovers and which constitutes a portion of the
principal amount under the Notes with respect to which the interest rate is
calculated by reference to the Eurodollar Rate for a particular Interest Period.
"EURODOLLAR RATE" means, with respect to each Interest Period, on any
day in such Interest Period the sum of: (a) the quotient of: (i) the Interbank
Offered Rate with respect to such Interest Period; divided by (ii) the remainder
of 1.00 minus the Eurodollar Reserve Requirement in effect on such day; and (b)
based upon the range in which the Leverage Ratio falls, the applicable
percentage in accordance with the following table:
<TABLE>
<CAPTION>
========================================================
Leverage Ratio Percentage
========================================================
<S> <C>
Less than 35% 2.00%
- --------------------------------------------------------
Equal to or greater than 35%, but less
than 45% 2.375%
- --------------------------------------------------------
Equal to or greater than 45%, but less 2.5625%
than 50%
- --------------------------------------------------------
Equal to or greater than 50% 2.75%
- --------------------------------------------------------
</TABLE>
"EURODOLLAR RESERVE REQUIREMENT" means, on any day, that percentage
(expressed as a decimal fraction) that is in effect on such day, as provided by
the Board of Governors of the Federal Reserve System (or any successor
governmental body) applied for determining the maximum reserve requirements
(including without limitation, basic, supplemental, marginal, and emergency
reserves) under Regulation D with respect to "Eurocurrency liabilities" as
currently defined in Regulation D, or under any similar or successor regulation
with respect to Eurocurrency liabilities or Eurocurrency funding. Each
determination by Agent of the Eurodollar Reserve Requirement shall, in the
absence of manifest error, be conclusive and binding.
"EVENT OF DEFAULT" means any of the occurrences set forth in SECTION
10.1 after the expiration of any applicable grace period and the giving of any
applicable notice, in each case as expressly provided in SECTION 10.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FEDERAL FUNDS RATE" means, on any day, a fluctuating interest rate per
annum (rounded upwards, if necessary, to the nearest 1/100th of 1%) equal to the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published for
8
<PAGE> 15
such day (or, if such day is not a Business Day, for the next preceding Business
Day) by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of the quotations for
such day on such transactions received by Agent from three (3) federal funds
brokers of recognized standing selected by Agent.
"FINANCIAL STATEMENTS" means: (a) quarterly and annual consolidated
statements of income and retained earnings, statement of cash flow, and balance
sheets; (b) such other financial statements as Borrower shall routinely and
regularly prepare on a quarterly or annual basis; (c) such other financial
statements of the Consolidated Businesses or Minority Holdings as the Requisite
Lenders may from time to time reasonably specify; provided, however, that the
financial statements referenced in CLAUSES (a) and (b) above shall be prepared
in form reasonably satisfactory to the Requisite Lenders.
"FISCAL YEAR" means the fiscal year of Borrower for accounting and tax
purposes, which shall be the 12-month period ending on December 31 of each
calendar year.
"FIXED CHARGES EXPENSE" means, with respect to any period, the sum of:
(a) Combined Interest Expense for such period; (b) scheduled payments of
principal due with respect to Indebtedness for such period (other than
Nonrecourse Debt with respect to Nonrecourse Debt Properties); (c) payments of
base rent (but not percentage rent, additional rent or other sums which may be
due) under any ground lease or Capital Lease of Borrower or any of its
Consolidated Businesses for such period; and (d) the amount of dividends
actually paid by General Partner with respect to its preferred stock for such
period.
"FLOATING BASE LOAN" means a Loan or Rollover made hereunder, that is
one of a group of Loans and Rollovers, and that constitutes a portion of the
principal amount under the Notes with respect to which the interest rate is
calculated by reference to the Floating Base Rate.
"FLOATING BASE RATE" means, on any date, the sum of: (a) the variable
rate of interest established, announced or published from time to time by Agent
as its "prime rate," "base rate" or "general reference rate" of interest for
short-term commercial loans in Dollars to domestic borrowers (which rate of
interest may not be the lowest rate charged by Agent on similar loans); and (b)
based upon the range in which the Leverage Ratio falls, the applicable
percentage in accordance with the following table:
<TABLE>
<CAPTION>
========================================================
Leverage Ratio Percentage
========================================================
<S> <C>
Less than 35% 0.75%
- --------------------------------------------------------
Equal to or greater than 35%, but less 1.125%
than 45%
- --------------------------------------------------------
Equal to or greater than 45%, but less 1.3125%
than 50%
- --------------------------------------------------------
Equal to or greater than 50% 1.50%
- --------------------------------------------------------
</TABLE>
Each change in the Floating Base Rate shall become effective without prior
notice to Borrower automatically as of the opening of business on the day of
such change in the Floating Base Rate.
9
<PAGE> 16
"FUNDING ACCOUNT" means the account maintained by Agent for the purpose
of funding Loans and receiving and disbursing payments hereunder.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the American Institute of Certified Public
Accountants' Accounting Principles Board and Financial Accounting Standards
Board or in such other statements by such other entity as may be in general use
by significant segments of the accounting profession as in effect on the Closing
Date (unless otherwise specified herein as in effect on another date or dates)
"GAS STATION SUBSIDIARY" means an Affiliate of Borrower that shall
invest solely in gas stations and related convenience stores, and that shall
satisfy the published criteria of S&P for a "bankruptcy-remote, single purpose
entity" as well as the other provisions of this Agreement with respect thereto;
provided, however, that (a) with respect to the S&P criteria for limited
liability companies, said Person shall not be required to satisfy the S&P
requirement that at least one of the members of the limited liability company be
a single purpose entity so long as a nonconsolidation opinion meeting S&P
requirements has been issued to Borrower by counsel acceptable to Required
Lenders (such counsel shall include the firm of Middleberg, Riddle & Gianna, or
any other independent firm of which Richard Wilensky is a partner, which serves
as outside general counsel to Borrower), and a copy thereof has been delivered
to Lenders; and (b) in no event shall any one Gas Station Subsidiary own more
than five (5) Properties.
"GENERAL PARTNER" means USRP Managing, Inc., a Delaware corporation.
"GOVERNMENTAL AUTHORITY" means any foreign governmental authority, the
United States of America, any state of the United States of America, and any
subdivision of any of the foregoing, and any agency, department, commission,
board, authority or instrumentality, bureau, or court having jurisdiction over
any of Borrower, any subsidiary, any Lender or any of their respective
businesses, operations, assets, or properties.
"GUARANTIES" means, collectively, those certain Guaranties of Payment,
substantially in the form of EXHIBIT G attached hereto, executed by USRPI and
General Partner, respectively, in favor of Agent, on behalf of the Lenders, and
that certain Subsidiary Guaranty, substantially in the form of EXHIBIT G-1
attached hereto, executed by the Subsidiary Guarantors in favor of Agent, for
the benefit of the Lenders.
"GUARANTORS" means, collectively, each of the signatories to the
Guaranties. "GUARANTOR" means any one of the Guarantors.
"HAZARDOUS MATERIAL" means any substance, material, or waste that is or
becomes regulated, under any federal, state, or local environmental Law
(including, but not limited to Environmental Laws) as hazardous to public health
or safety or to the environment, including, but not limited to: (a) any
substance or material designated as a "hazardous substance" under Section 311 of
the Clean Water Act, 33 U.S.C.A. Section 1251 et seq. (33 U.S.C. Section 1321)
or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. Section
1317); (b) any substance or material defined as "hazardous waste" under Section
1004 of the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et
seq. (42 U.S.C. Section 6903); and (c) any substance or material defined as a
"hazardous substance" under Section 101 of the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Section 9001 et seq. (42
U.S.C. Section 9601).
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<PAGE> 17
"INDEBTEDNESS", as applied to any Person, means, at any time, without
duplication: (a) all indebtedness, obligations or other liabilities of such
Person (whether consolidated or representing the proportionate interest in any
other Person): (i) for borrowed money (including construction loans) or
evidenced by debt securities, debentures, acceptances, notes or other similar
instruments, and any accrued interest, fees and charges relating thereto; (ii)
under profit payment agreements or in respect of obligations to redeem,
repurchase or exchange any Securities of such Person or to pay dividends in
respect of any stock; (iii) with respect to letters of credit issued for such
Person's account; (iv) to pay the deferred purchase price of property or
services, except accounts payable and accrued expenses arising in the ordinary
course of business; (v) in respect of Capital Leases; (vi) which are Contingent
Obligations; or (vii) under warranties and indemnities; (b) all indebtedness,
obligations or other liabilities of such Person or others secured by a Lien on
any property of such Person, whether or not such indebtedness, obligations or
liabilities are assumed by such Person, all as of such time; (c) all
indebtedness obligations or other liabilities of such Person in respect of
interest rate contracts and foreign exchange contracts, net of liabilities owed
to such Person by the counterparties thereon; (d) all preferred stock subject
(upon the occurrence of any contingency or otherwise) to mandatory redemption;
and (e) all contingent Contractual Obligations with respect to any of the
foregoing. Notwithstanding the foregoing, Indebtedness shall not include
Nonrecourse Debt with respect to Nonrecourse Debt Properties.
"INTERBANK OFFERED RATE" means, with respect to each Interest Period,
the rate of interest per annum determined by Agent (in accordance with its
customary general practice) to be the arithmetic average (rounded upwards to the
nearest 1/16 of 1%) of the per annum rates at which deposits in immediately
available and freely transferable funds in Dollars are offered by Agent (at
approximately 11:00 a.m., New York City time, two (2) Eurodollar Business Days
prior to the first day of such Interest Period) to prime banks in the interbank
Eurodollar market for delivery on the first day of such Interest Period, such
deposits being for a period of time equal or comparable to such Interest Period
and in an amount equal to or comparable to the principal amount of the
Eurodollar Loan of Agent to which such Interest Period relates. Agent shall
attempt to notify Borrower of Agent's determination of the Interbank Offered
Rate as soon as practicable following such determination. If Agent does not
furnish a timely quotation, the provisions of SECTION 4.1 hereof shall apply.
Each determination of the Interbank Offered Rate by Agent shall, in the absence
of manifest error, be conclusive and binding.
"INTEREST OPTION" means the Eurodollar Rate and the Floating Base Rate.
"INTEREST PAYMENT DATE" means: (a) as to any Floating Base Loan, the
last Business Day of each month, commencing on the first of such days to occur
after such Floating Base Loan is made or after any Eurodollar Loan is converted
to a Floating Base Loan, or such earlier date as such Floating Base Loan shall
mature, by acceleration or otherwise; (b) as to any Eurodollar Loan, the last
day of an Interest Period, or such earlier date as such Eurodollar Loan shall
mature, by acceleration or otherwise; and (c) as to any Loan, the Maturity Date
or the date of any prepayment made hereunder.
"INTEREST PERIOD" means, with respect to any Eurodollar Loan, a period
commencing: (a) on the borrowing date of such Eurodollar Loan; or (b) on the
termination date of the immediately preceding Interest Period in the case of a
Rollover to a successive Interest Period as described in SECTION 2.2(c), and
ending one month thereafter; provided, however, (i) any Interest Period that
would otherwise end on a day which is not a Eurodollar Business Day shall be
extended to the next succeeding Eurodollar Business Day unless such Eurodollar
Business Day falls in another calendar month, in which case such Interest Period
shall end on the next preceding Eurodollar Business Day; (ii) any Interest
Period that begins on the last Eurodollar Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall, subject to CLAUSE (i) above,
end on the last Eurodollar Business Day of a
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<PAGE> 18
calendar month; and (iii) if the Interest Period would otherwise end after the
Maturity Date, such Interest Period shall end on the Maturity Date.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter, any successor
statute and any regulations or guidance promulgated thereunder.
"INVESTMENT" means, with respect to any Person: (a) any purchase or
other acquisition by that Person of Securities, or of a beneficial interest in
Securities, issued by any other Person; (b) any purchase by that Person of all
or substantially all of the assets of a business conducted by another Person;
and (c) any loan, advance (other than deposits with financial institutions
available for withdrawal on demand, prepaid expenses, accounts receivable,
advances to employees and similar items made or incurred in the ordinary course
of business) or capital contribution by that Person to any other Person,
including all Indebtedness to such Person arising from a sale of property by
such Person other than in the ordinary course of its business. The amount of any
Investment shall be the original cost of such Investment plus the cost of all
additions thereto, less the amount of any return of capital or principal to the
extent such return is in cash with respect to such Investment without any
adjustments for increases or decreases in value or write-ups, write-downs or
write-offs with respect to such Investment.
"INVESTMENT GRADE CREDIT RATING" means: (a) with respect to Moody's, a
credit rating of Baa3 or higher; and (b) with respect to S&P, a credit rating of
BBB- or higher.
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
"LAWS" means all applicable statutes, laws, treaties, ordinances,
rules, regulations, orders, writs, injunctions, decrees, judgments, opinions,
and interpretations of any Governmental Authority.
"LENDER" is defined in the preamble to this Agreement.
"LENDER DEFAULT" is defined in SECTION 11.14.
"LEVERAGE RATIO" means the ratio, expressed as a percentage, of the
Total Adjusted Outstanding Indebtedness to the Capitalization Value.
"LIABILITIES AND COSTS" means all liabilities, obligations,
responsibilities, losses, damages, personal injury, death, punitive damages,
economic damages, consequential damages, treble damages, intentional, willful or
wanton injury, damage or threat to the environment, natural resources or public
health or welfare, costs and expenses (including, without limitation, attorney,
expert and consulting fees and costs of investigation, feasibility or Remedial
Action studies), fines, penalties and monetary sanctions, interest, direct or
indirect, known or unknown, absolute or contingent, past, present or future.
"LIEN" means any mortgage, deed of trust, pledge, hypothecation,
assignment, conditional sale agreement, deposit arrangement, security interest,
encumbrance, lien (statutory or other and including, without limitation, any
Environmental Lien), preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever in respect of any
property of a Person, whether granted voluntarily or imposed by law, and
includes the interest of a lessor under a Capital Lease or under any financing
lease having substantially the same economic effect as any of the foregoing and
the filing of any financing statement or similar notice (other than a financing
statement filed-by a "true" lessor pursuant to 9-408 of the Uniform Commercial
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<PAGE> 19
Code), naming the owner of such property as debtor, under the Uniform Commercial
Code or other comparable law of any jurisdiction.
"LIMITED MINORITY HOLDINGS" means Minority Holdings in which: (a)
Borrower has a less than fifty percent (50%) beneficial ownership interest; or
(b) Borrower or its wholly-owned Subsidiary does not control the management of
such Minority Holdings, whether as the general partner or managing member of
such Minority Holding, or otherwise. As used in this definition only, the term
"control" shall mean the authority to make unilaterally major management
decisions, in addition to the management of day-to-day operations of such entity
and shall include instances in which Borrower manages the day-to-day leasing,
management, control or development of the Properties of such Minority Interest
pursuant to the terms of a management agreement.
"LIMITED PARTNERS" means those Persons who from time to time are
limited partners of Borrower; and "LIMITED PARTNER" means each of the Limited
Partners, individually.
"LITIGATION" means any action or proceeding by or before any
Governmental Authority.
"LOAN" means any amount loaned to Borrower by Lenders under this
Agreement.
"LOAN DOCUMENTS" means: (a) this Agreement, certificates and reports
delivered under this Agreement, and exhibits and schedules to this Agreement;
(b) the Note and all other agreements, documents, and instruments in favor of
Lender ever delivered under this Agreement or otherwise delivered in connection
with all or any part of the Obligations, including, without limitation, each of
the Guaranties; and (c) all renewals, extensions, and restatements of, and
amendments and supplements to, any of the foregoing.
"MANDATORY PREPAYMENT DATE" is defined in SECTION 3.6.
"MARGIN STOCK" means "margin stock" as such term is defined in
Regulation U and Regulation G.
"MATERIAL ADVERSE EFFECT" means any: (a) material adverse effect
whatsoever upon the validity, performance, or enforceability of any Loan
Document; (b) material impairment of the ability of Borrower to fulfill its
payment or other material obligations under the Loan Documents; (c) material and
adverse effect on the financial condition of Borrower as represented to Lender
in the Current Financials most recently delivered before the date of this
Agreement; or (d) Event of Default or Potential Default.
"MATURITY DATE" means the earlier of: (a) April 11, 2002; or (b) the
date on which the Obligations otherwise become earlier due and payable under the
terms of this Agreement.
"MAXIMUM COMMITMENT" means the aggregate Commitments of all Lenders,
but in no event greater than $50,000,000.
"MAXIMUM RATE" means, on any day, the highest, non-usurious interest
rate (if any) permitted by Law.
"MINORITY HOLDINGS" means partnerships, joint ventures, corporations
and other entities held or owned by Borrower or any Subsidiary which are not
directly or indirectly wholly-owned by Borrower.
"MOODY'S" means Moody's Investors Service, Inc.
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<PAGE> 20
"MORTGAGE SUBSIDIARY" means an Affiliate of Borrower that shall invest
solely in mortgages on real and personal properties of unaffiliated
third-parties, and that shall satisfy the published criteria of S&P for a
"bankruptcy-remote, single purpose entity."
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in Sections
3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Internal Revenue Code to
which Borrower or any member of the Controlled Group is making, or has made, or
is accruing, or has accrued, an obligation to make contributions.
"NPL" is defined in SECTION 6.17(a).
"NONRECOURSE DEBT" means Indebtedness as to which the lender's recourse
is limited to either: (a) the property securing such Indebtedness (subject to
customary carve-outs for fraud, misapplication of funds); or (b) the property of
any Subsidiary securing such Indebtedness or the assets of any such Subsidiary
(provided that in such case, all assets of such Subsidiary shall constitute
Nonrecourse Debt), but is not recourse to Borrower, the General Partner, the
Guarantors or any Subsidiary (provided that Borrower, the General Partner and
the Guarantors may pledge, on a nonrecourse basis, their interests in any such
Subsidiary, in which event the assets of such Subsidiary shall constitute
Nonrecourse Debt).
"NONRECOURSE DEBT PROPERTIES" means Properties acquired by Borrower or
any Subsidiary which are subject to Nonrecourse Debt.
"NOTES" means the promissory notes issued by Borrower to Lenders
pursuant to SECTION 3.1 hereof, as such notes may be amended, restated,
reissued, extended or modified, and "NOTE" means any one of the Notes.
"OBLIGATIONS" means all Loans, advances, debts, liabilities,
obligations, covenants and duties owing by Borrower to Agent, any other Lender,
any Affiliate of Agent, any other Lender, or any Person entitled to
indemnification pursuant to SECTION 12.1 of this Agreement, of any kind or
nature, arising under this Agreement, the Notes or any other Loan Document. The
term includes, without limitation, all interest, charges, expenses, fees,
reasonable attorneys' fees and disbursements and any other sum chargeable to
Borrower under this Agreement or any other Loan Document.
"OFFICER'S CERTIFICATE" means, as to a corporation, a certificate
executed on behalf of such corporation by the chairman of its board of directors
(if an officer of such corporation) or its chief executive officer, president,
any of its vice-presidents, its chief financial officer, or its treasurer and,
as to a partnership, a certificate executed on behalf of such partnership by the
chairman of the board of directors (if an officer of such corporation) or chief
executive officer, president, any vice-president or treasurer of the general
partner of such partnership.
"ORGANIZATIONAL DOCUMENTS" means, with respect to any corporation,
limited liability company, or partnership: (a) the articles/certificate of
incorporation, formation or limited partnership (or the equivalent
organizational documents) of such corporation or limited liability company or
limited partnership; (b) the partnership agreement executed by the partners in
the partnership; (c) the by-laws (or the equivalent governing documents) of the
corporation, limited liability company or partnership; and (d) any document
setting forth the designation, amount and/or relative rights, limitations and
preferences of any class or series of such corporation's Capital Stock or such
limited liability company's or partnership's equity or ownership interests.
"OSHA" means the Occupational Safety and Health Act of 1970, 29. U.S.C.
Sections 651 et seq., any amendments thereto, any successor statutes and any
regulations or guidance promulgated thereunder.
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<PAGE> 21
"OTHER CREDIT FACILITIES" means any agreement or other arrangement by
which any commercial bank or other Person loans monies or extends credit to
Borrower in an original principal or commitment amount equal to or exceeding
$10,000,000, including, without limitation, the UBS Agreement, Term Note
Agreement No. 1, Term Note Agreement No. 2 and Term Note Agreement No. 3.
"OTHER TAXES" is defined in SECTION 3.10(b).
"PARTICIPANT" is defined in SECTION 12.9(b).
"PBGC" means the Pension Benefit Guaranty Corporation.
"PERMITS" means any permit, consent, approval, authorization, license,
variance, or permission required from any Person, including any Governmental
Approvals.
"PERSON" means any natural person, corporation, limited liability
company, limited partnership, general partnership, joint stock company, joint
venture association, company, trust, bank, trust company, land trust, business
trust or other organization, whether or not a legal entity, and any Governmental
Authority.
"PLAN" means an employee benefit plan defined in Section 3(3) of ERISA
in respect of which Borrower or any ERISA Affiliate is, or within the
immediately preceding six (6) years was, an "employer" as defined in Section
3(5) of ERISA or Borrower or any ERISA Affiliate has assumed any liability.
"POTENTIAL EVENT OF DEFAULT" means an event which, with the giving of
notice or the lapse of time, or both, would constitute an Event of Default.
"PRESCRIBED FORMS" means any duly executed forms and/or statements that
may, from time to time, be prescribed by law, permitting Borrower to make
payments hereunder for the account of a Lender free of deduction or withholding
of income or similar taxes, pursuant to applicable provisions of: (a) an income
tax treaty between the United States and the country of residence of a Lender
providing the forms and/or statements; or (b) the Internal Revenue Code and any
applicable rule or regulation thereunder.
"PRO RATA SHARE" means, with respect to each Lender, the percentage
obtained from the fraction: (a) the numerator of which is the Commitment of such
Lender; and (b) the denominator of which is the aggregate Commitments of all
Lenders.
"PROCESS AGENT" means CT Corporation, 1633 Broadway, New York, New York
10019.
"PROPERTY" means any Real Property or personal property, plant,
building, facility, structure, underground storage tank or unit, equipment,
general intangible, receivable, or other asset owned, leased or operated by any
Consolidated Business or any Minority Holding (including any surface water
thereon or adjacent thereto, and soil and groundwater thereunder).
"RCRA" means the Resource Conservation and Recovery Act of 1976, 42
U.S.C. Sections 6901, any amendments thereto, any successor statutes and any
regulations or guidance promulgated thereunder.
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"REAL PROPERTY" means all present and future right, title and interest
(including, without limitation, any leasehold estate) of Borrower and its
Subsidiaries in: (a) any plots, pieces or parcels of land; (b) any Improvements
of every nature whatsoever (the rights and interests described in CLAUSES (a)
and (B) above being the "PREMISES"); (c) all easements, rights of way, gores of
land or any lands occupied by streets, ways, alleys, passages, sewer rights,
water courses, water rights and powers, and public places adjoining such land,
and any other interests in property constituting appurtenances to the Premises,
or which hereafter shall in any way belong, relate or be appurtenant thereto;
(d) all hereditaments, gas, oil, minerals (with the right to extract, sever and
remove such gas, oil and minerals), and easements, of every nature whatsoever,
located in, on or benefitting the Premises; and (e) all other rights and
privileges thereunto belonging or appertaining and all extensions, additions,
improvements, betterments, renewals, substitutions and replacements to or of any
of the rights and interests described in CLAUSES (c) and (d) above.
"REGULATION D" means Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"REGULATION G" means Regulation G of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"REGULATION U" means Regulation U promulgated by the Board of Governors
of the Federal Reserve System, as in effect from time to time.
"REGULATION X" means Regulation X of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"REIT" means a domestic trust or corporation that qualifies as a real
estate investment trust under the provisions of Sections 856, et. seq. of the
Internal Revenue Code.
"RELEASE" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching, or migration into
the indoor or outdoor environment or into or out of any property, including the
movement of any Hazardous Material or any waste, pollutant, hazardous substance,
toxic substance, hazardous waste, special waste, or any constituent of any such
substance or waste, including, but not limited to these terms as defined in
Environmental Laws, through or in the air, soil, surface water, groundwater, or
any property.
"REMEDIAL ACTION" means actions required to: (a) clean up, remove,
treat or in any other way address Hazardous Materials in the indoor or outdoor
environment; (b) prevent the Release or threat of Release or minimize the
further Release of Hazardous Materials; or (c) investigate and determine if a
remedial response is needed and to design such a response and post-remedial
investigation, monitoring, operation and maintenance and care.
"REPORTABLE EVENT" means any of the events described in Section 4043(b)
of ERISA and the regulations promulgated thereunder as in effect from time to
time but not including any such event as to which the thirty (30) day notice
requirement has been waived by applicable PBGC regulations.
"REPRESENTATIVES" means representatives, officers, directors,
employees, accountants, attorneys, and agents.
"REQUEST FOR BORROWING" is defined in SECTION 2.2.
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"REQUIREMENTS OF LAW" means, as to any Person, the charter and by-laws
or other organizational or governing documents of such Person, and any law, rule
or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject
including, without limitation, the Securities Act, the Securities Exchange Act,
Regulations G, T, U and X, ERISA, the Fair Labor Standards Act, the Worker
Adjustment and Retraining Notification Act, Americans with Disabilities Act of
1990, and any certificate of occupancy, zoning ordinance, building,
environmental or land use requirement or Permit and Environmental, Health or
Safety Requirement of Law.
"REQUISITE LENDERS" means Lenders whose Pro Rata Shares, in the
aggregate, are greater than sixty-six and two-thirds percent (66 2/3%);
provided, in the event any Lender fails to fund its Pro Rata Share of any Loan
and such failure remains uncured, then "REQUISITE LENDERS" means Lenders,
excluding all Lenders whose failure to fund remains uncured, whose Pro Rata
Shares, in the aggregate, are greater than sixty-six and two-thirds percent (66
2/3%); provided further, in the event the Available Commitment has been
terminated pursuant to the terms of this Agreement, "REQUISITE LENDERS" means
Lenders whose aggregate outstanding principal balance of Loans, stated as a
percentage of all such Loans, is greater than sixty-six and two-thirds percent
(66 2/3%).
"ROLLOVER" means the renewal of any Eurodollar Loan or Floating Base
Loan upon the expiration of the Interest Period with respect thereto, pursuant
to SECTION 2.2(c) hereof.
"ROLLOVER NOTICE" is defined in SECTION 2.2(c) hereof.
"RULE 144" means Rule 144 of the General Regulations as promulgated by
the Securities and Exchange Commission under the Securities Act and, as
applicable, its various sections and subsections.
"S&P" means Standard and Poor's Corporation.
"SALE-LEASEBACK SUBSIDIARY" means an Affiliate of Borrower that: (a)
shall invest solely in gasoline/convenience stores and restaurant real
properties operated by unaffiliated third-party tenants; (b) shall satisfy the
published criteria of S&P for a "bankruptcy remote, single purpose entity;" and
(c) with respect to which all of its Properties are subject to Secured
Indebtedness; provided that, notwithstanding anything to the contrary contained
in the definition of "GAS STATION SUBSIDIARY," a Sale-Leaseback Subsidiary may
acquire more than five (5) Properties which may not be exclusively gas station
Properties.
"SECURED INDEBTEDNESS" means any Indebtedness secured by a Lien.
"SECURITIES" means any stock, shares, voting trust certificates,
partnership interests, bonds, debentures, notes or other evidences of
indebtedness, secured or unsecured, convertible, subordinated or otherwise, or
in general any instruments commonly known as "securities", including, without
limitation, any "security" as such term is defined in Section 8-102 of the
Uniform Commercial Code, or any certificates of interest, shares, or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire any of the
foregoing, but shall not include the Notes or any other evidence of the
Obligations.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
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<PAGE> 24
"SOLVENT", when used with respect to any Person, means that at the time
of determination: (a) the fair saleable value of its assets is in excess of the
total amount of its liabilities (including, without limitation, Contingent
Liabilities); (b) the present fair saleable value of its assets is greater than
its probable liability on its existing debts as such debts become absolute and
matured; (c) such Person is then able and expects to be able to pay its debts
(including, without limitation, Contingent Liabilities and other commitments) as
they mature; and (d) such Person has capital sufficient to carry on its business
as conducted and as proposed to be conducted.
"SUBSIDIARY" means any corporation, limited liability company, general
or limited partnership, or other entity of which securities or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at the time directly
or indirectly owned or controlled by Borrower, one or more of the other
subsidiaries of Borrower or any combination thereof.
"SUBSIDIARY GUARANTORS" means, collectively, USRP (West Virginia)
Partners, L.P., a Texas limited partnership, Restaurant Renovation Partners,
L.P., a Texas limited partnership, U.S. Restaurant Properties Development L.P.,
a Texas limited partnership, USRP (Lincoln), Ltd., a Texas limited partnership,
USRP (Norman) Ltd., a Texas limited partnership, and USRP (Carolina), Ltd., a
Texas limited partnership.
"SUPERMAJORITY LENDERS" means Lenders whose Pro Rata Shares, in the
aggregate, are greater than eighty percent (80%); provided, in the event any
Lender fails to fund its Pro Rata Share of any Loan and such failure remains
uncured, then "SUPERMAJORITY LENDERS" means Lenders, excluding all Lenders whose
failure to fund remains uncured, whose Pro Rata Shares, in the aggregate, are
greater than eighty percent (80%); provided further, in the event the Available
Commitment has been terminated pursuant to the terms of this Agreement,
"SUPERMAJORITY LENDERS" means Lenders whose aggregate outstanding principal
balance of Loans, stated as a percentage of all such Loans, is greater than
eighty percent (80%).
"TAXES" is defined in SECTION 3.6.
"TERM NOTE AGREEMENT NO. 1" means the Note Purchase Agreement, dated as
of January 31, 1997, of Borrower, with respect to the issuance of $12,500,000
principal amount of 8.06% Series A Senior Secured Guarantied Notes due January
31, 2000, and $27,500,000 principal amount of 8.30% Series B Senior Secured
Guarantied Notes Due January 31, 2002.
"TERM NOTE AGREEMENT NO. 2" means the Note Purchase Agreement, dated as
of May 1, 1998, of Borrower, with respect to the issuance of $110,000,000
principal amount of 7.15% Senior Notes due May 1, 2005.
"TERM NOTE AGREEMENT NO. 3" means the Note Purchase Agreement, dated as
of November 13, 1998, of Borrower, with respect to the issuance of $47,500,000
principal amount of 8.22% Senior Notes due August 1, 2003.
"TOTAL ADJUSTED OUTSTANDING INDEBTEDNESS" means, for any period, the
sum of: (a) the amount of Indebtedness of Borrower and the Consolidated
Businesses which is not Nonrecourse Debt, set forth on the then most recent
quarterly financial statements of Borrower; (b) the outstanding amount of
Minority Holding Indebtedness which is not Nonrecourse Debt as of the time of
determination; and (c) without duplication, Contingent Obligations, which are
recourse obligations, of Borrower, including those of Minority Holdings.
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"TOTAL UNSECURED OUTSTANDING INDEBTEDNESS" means that portion of Total
Adjusted Outstanding Indebtedness that is Unsecured Indebtedness.
"UBS AGREEMENT" means that certain Revolving Credit Agreement, dated
January 9, 1998, among Borrower, the other lenders named therein, and Union Bank
of Switzerland, New York Branch, as agent.
"UNENCUMBERED COMBINED EBITDA" means that portion of Combined EBITDA
which represents revenues earned from Real Property that is not subject to or
encumbered by Secured Indebtedness and is not subject to any agreements other
than this Agreement, the Term Note Agreement and the UBS Agreement, the effect
of which would be to restrict, directly or indirectly, the ability of the owner
of such Property from granting Liens thereon, calculated on the first day of
each fiscal quarter for the immediately preceding fiscal quarter, annualized.
"UNSECURED INDEBTEDNESS" means Indebtedness which is not Secured
Indebtedness.
"UNSECURED INTEREST EXPENSE" means the portion of the Combined Interest
Expense attributable to Total Unsecured Outstanding Indebtedness.
"UNIFORM COMMERCIAL CODE" means the Uniform Commercial Code as enacted
in the State of New York, as it may be amended from time to time.
"USRPI" means U.S. Restaurant Properties, Inc., a Maryland corporation,
the sole owner of General Partner.
1.2 TIME REFERENCES. Unless otherwise specified, in the Loan Documents:
(a) time references (e.g., 10:00 a.m.) are to time in New York City; (b) in
calculating a period from one date to another, the word "from" means "from and
including" and the word "to" or "until" means "to but excluding"; and (c)
references to a "day" or "days," unless specified otherwise, are to calendar
days.
1.3 OTHER REFERENCES. Unless otherwise specified, in the Loan
Documents: (a) where appropriate, the singular includes the plural and vice
versa, and words of any gender include each other gender; (b) heading and
caption references may not be construed in interpreting provisions; (c) monetary
references are to currency of the United States of America; (d) section,
paragraph, annex, schedule, exhibit, and similar references are to the
particular Loan Document in which they are used; (e) references to "telecopy,"
"facsimile," "fax," or similar terms are to facsimile or telecopy transmissions;
(f) references to "including" mean including without limiting the generality of
any description preceding that word; (g) the rule of construction that
references to general items that follow references to specific items as being
limited to the same type or character of those specific items is not applicable
in the Loan Documents; (h) references to any Person include that Person's heirs,
personal representatives, successors, trustees, receivers, and permitted
assigns; (i) references to any Law include every amendment or supplement to it,
rule and regulation adopted under it, and successor or replacement for it; and
(j) references to any Loan Document or other document include every renewal and
extension of it, amendment and supplement to it, and replacement or substitution
for it.
1.4 ACCOUNTING PRINCIPLES. Unless otherwise specified, in the Loan
Documents: (a) GAAP determines all accounting and financial terms and compliance
with financial covenants; (b) GAAP in effect on the date of this Agreement
determines compliance with financial covenants; provided that GAAP shall be
applied
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without reference to EITF-98-9; and (c) otherwise, all accounting principles
applied in a current period must be comparable in all material respects to those
applied during the preceding comparable period.
SECTION 2 LOAN.
2.1 COMMITMENT. Subject to the provisions of the Loan Documents, each
Lender hereby, severally and not jointly, agrees to extend to Borrower, on or
prior to the Commitment Termination Date, a term Loan, in one or more advances,
in an amount not to exceed its Pro Rata Share of the Maximum Commitment. This
Agreement is a multiple advance term loan facility; therefore, (a) any amount of
the Available Commitment not advanced prior to the close of Agent's banking
business on the Commitment Termination Date shall automatically expire and no
longer be available to Borrower; and (b) no portion of any Loans may be
reborrowed once paid or prepaid.
2.2 MANNER OF BORROWING. So long as the conditions precedent to
borrowing under SECTION 5 have been satisfied, Borrower shall give Agent notice
of the date of each requested Loan hereunder, which notice may be by telephone,
if confirmed in writing, telex, facsimile, or other written communication (the
"REQUEST FOR BORROWING"), and which notice shall be irrevocable and effective
upon receipt by Agent. Each Request for Borrowing shall be in the form attached
hereto as EXHIBIT C (with blanks completed in conformity herewith) and shall be
furnished to Agent at least three (3) Eurodollar Business Days prior to the
requested date of the funding of a Eurodollar Loan, and at least two (2)
Business Days prior to the requested date of funding of a Floating Base Loan.
(1) REQUEST FOR BORROWING. Each Request for Borrowing shall be
deemed to constitute a representation and warranty by Borrower that:
(1) As of the date of the Loan requested, the
representations and warranties set forth in SECTION 6 hereof
are and will be true and correct in all material respects both
immediately before and after giving effect to such Loan;
(2) No Event of Default or Potential Event of Default
exists and is continuing at such date; and after giving effect
to such Loan, the aggregate outstanding unpaid principal
balance of all Loans as of such date will not exceed the
Maximum Commitment.
Borrower shall indemnify Lenders against any cost, loss, or
expense incurred by Lenders, or any of them, as a result of any failure
to fulfill, on or before the date specified for such Loan, the
conditions to such Loan set forth herein, including, without
limitation, any cost, loss, or expense incurred by reason of the
liquidation or re-deployment of the deposits or other funds acquired by
Lenders, or any of them, to fund the Loan to be made by Lenders as a
part of such Loan when such Loan, as a result of such failure, is not
made on such date. A certificate of a Lender setting forth the amount
of any such cost, loss or expense, and the basis for the determination
thereof, shall be delivered to Borrower and Agent and shall, in the
absence of a manifest error, be conclusive and binding. Notwithstanding
any provision to the contrary contained in this SECTION 2.2, Borrower
shall not be required to indemnify Lenders against any costs, loss or
expenses incurred by Lenders, or any of them, as a result of the
liquidation or redeployment of funds due to Borrower's failure to
fulfill, on or before the date specified for a Floating Base Rate Loan,
the conditions to such Loan set forth herein.
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(2) REQUEST FOR CURRENT RATES. Prior to making a Request for
Borrowing, Borrower may (without specifying whether the anticipated
Loan shall be a Floating Base Loan or Eurodollar Loan) request that
Agent provide the most recent Floating Base Rate and Eurodollar Rate
available to Lenders. Agent shall endeavor to provide such quoted rates
to Borrower within two (2) Business Days of such request.
(3) ROLLOVERS. At least four (4) Eurodollar Business Days
prior to the last day of an Interest Period, Agent shall endeavor to
provide Borrower with notice of the expiration of such Interest Period;
provided, however, that Agent's failure to provide such notice will in
no way affect or otherwise compromise the obligation of Borrower to
provide the Rollover Notice referred to below. At least three (3)
Eurodollar Business Days prior to the termination of each Eurodollar
Interest Period, Borrower shall give Agent written notice (the
"ROLLOVER NOTICE") whether Borrower desires to renew such Eurodollar
Loan and shall designate the Interest Option which shall be applicable
to such Rollover upon the expiration of such Interest Period. Each
Rollover Notice shall be irrevocable and effective upon notification
thereof to Agent and shall be deemed to constitute a representation and
warranty by Borrower that the representations and warranties set forth
in SECTION 6 hereof are true and correct in all material respects on
and as of the date of such Rollover Notice, with the same force and
effect as if made on and as of such date. If Borrower fails to timely
give Agent the Rollover Notice with respect to any Loan, Borrower shall
be deemed to have elected the Floating Base Rate as the Interest Option
with respect to such Loan, commencing on the expiration of the
preceding Interest Period.
(4) CONVERSIONS. With respect to any Floating Base Loan,
Borrower shall have the right, on any Eurodollar Business Day (a
"CONVERSION DATE"), to convert such Floating Base Loan to a Eurodollar
Loan, by giving Agent written notice (a "CONVERSION NOTICE") of such
selection at least three (3) Eurodollar Business Days prior to such
Conversion Date. Each Conversion Notice shall be irrevocable and
effective upon notification thereof to Agent and shall be deemed to
constitute a representation and warranty by Borrower that the
representations and warranties set forth in SECTION 6 hereof are true
and correct in all material respects on and as of the date of such
Conversion Notice, with the same force and effect as if made on and as
of such date.
(5) TRANCHES. Notwithstanding anything to the contrary
contained herein, Borrower shall not have the right to have more than
five (5) Eurodollar Loans, in the aggregate, outstanding hereunder at
any one time, and Borrower shall not have the right to request a
Eurodollar Loan if the interest rate applicable thereto under SECTION
3.2 hereof would exceed the Maximum Rate in effect on the first day of
the Interest Period applicable to such Eurodollar Loan.
(6) AGENT NOTIFICATION OF LENDERS. Agent shall promptly notify
each Lender of receipt of a Request for Borrowing, a Conversion Notice
or a Rollover Notice; Agent shall specify the amount of the Loan and
such Lender's Pro Rata Share thereof, the date the Loan is to be made,
the Interest Option selected, and the applicable rate of interest.
2.3 MINIMUM LOAN AMOUNTS. Each Loan shall be in an amount of at least
$10,000,000. If the Available Commitment is less than $10,000,000, then the Loan
shall be in the amount of the then Available Commitment.
2.4 FUNDING. Each Lender shall make the proceeds of its Pro Rata Share
of each Loan available to Agent at its Funding Account for the account of
Borrower at or prior to 2:00 p.m. (New York City time) on
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the date specified in the Request for Borrowing, as the borrowing date, in
immediately available funds; and upon fulfillment of all applicable conditions
set forth herein, Agent shall deposit such proceeds in immediately available
funds in Borrower's account specified in the Request for Borrowing. The failure
of any Lender to advance the proceeds of its Pro Rata Share of any Loan required
to be advanced hereunder shall not relieve any other Lender of its obligation to
advance the proceeds of its Pro Rata Share of any Loan required to be advanced
hereunder. The liabilities and obligations of each Lender hereunder shall be
several and not joint, and neither Agent nor any Lender shall be responsible for
the performance by any other Lender of its obligations hereunder. Each Lender
hereunder shall be liable to Borrower only for the amount of its Commitment.
2.5 INTEREST RATE.
(1) RATE. The unpaid principal of each Floating Base Loan
shall bear interest at a rate per annum which shall from day to day be
equal to the Floating Base Rate in effect from day to day. The unpaid
principal of each Eurodollar Loan shall bear interest at a rate per
annum which shall be equal to the Eurodollar Rate for the applicable
Interest Period.
(2) CHANGE IN RATE; PAST DUE AMOUNTS; CALCULATIONS OF
INTEREST. Each change in the rate of interest under each Note shall
become effective, without prior notice to Borrower, automatically as of
the opening of business of Lenders on the date of said change. Interest
shall be calculated on the basis of actual days elapsed in a year
consisting of 360 days. If any principal of, or interest on, any Note
is not paid when due, then (in lieu of the interest rate provided in
SECTION 2.5(a) above) such past due principal and interest on the Note
shall bear interest at the Default Rate.
2.6 DETERMINATION OF RATE. Agent shall determine each interest rate
applicable to the Loans hereunder. Agent shall give prompt notice to Borrower of
each rate of interest so determined, and its determination thereof shall be
conclusive and binding in the absence of manifest error.
SECTION 3 PAYMENT TERMS.
3.1 PROMISSORY NOTES. All Loans hereunder shall be evidenced by
promissory notes of Borrower. Each Note issued by Borrower shall: (a) be dated:
(i) with respect to the initial Note payable to the order of each initial
Lender, the date hereof; and (ii) with respect to subsequent, replacement Notes
or Notes payable to subsequent Lenders, if applicable, the date of funding of
such Lender's Commitment or the date of the relevant Assignment and Acceptance
Agreement for such Lender; (b) be in the amount of the applicable Lender's
Commitment; (c) be payable to the order of such Lender at its principal office;
(d) bear interest in accordance with the terms herein; and (e) be in the form of
EXHIBIT A attached hereto (with blanks appropriately completed in conformity
herewith). Borrower agrees from time to time, upon the request of Agent or any
affected Lender, to reissue new Notes, in accordance with the terms and in the
form heretofore provided, to any Lender and any Assignee of such Lender in
accordance with SECTION 12.9(c) hereof, in renewal of and substitution for the
Note previously issued by Borrower to the affected Lender.
3.2 PAYMENT OF OBLIGATIONS. The unpaid principal amount of the
Obligations, together with all accrued but unpaid interest thereon, shall be due
and payable on the Maturity Date.
(1) INTEREST CALCULATED. Interest on each Loan and any portion
thereof shall commence to accrue in accordance with the terms of this
Agreement and the other Loan Documents as of the date of the disbursal
or wire transfer of such Loan by Agent, notwithstanding whether
Borrower received the
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benefit of such Loan as of such date. When a Loan is disbursed by wire
transfer, such Loan shall be considered made at the time of the
transmission of the wire, rather than the time of receipt thereof by
the receiving bank. With regard to the repayment of the Loans, interest
shall continue to accrue on any amount repaid until such time as the
repayment has been received in federal or other immediately available
funds by Agent in the Funding Account.
(2) INTEREST PAYMENT DATES. Interest on the Notes shall be due
and payable on each Interest Payment Date, and on the Maturity Date.
(3) DIRECT DISBURSEMENT. If, at any time, Agent does not
receive on the date due, any payment of interest upon the Loans or any
fee described herein, Agent may disburse funds from the Funding Account
to Lenders to the extent available therein for payment of any such
amount and thereafter may disburse to Lenders, without notice to or
consent of Borrower, in immediately available funds an amount equal to
the interest or fee due to Lenders, which disbursement shall be deemed
to be a Floating Base Loan pursuant to SECTION 2 hereof, and Borrower
shall be deemed to have given to Lenders, in accordance with the terms
and conditions of SECTION 2.2(a), a Request for Borrowing with respect
thereto.
3.3 PAYMENTS ON THE NOTES. All payments of principal of, and interest
on, the Notes, of fees and of all other amounts payable under this Agreement by
Borrower to or for the account of Lenders, or any of them, shall be made by
Borrower to Agent before 12:00 noon in federal or other immediately available
funds to the Funding Account. Funds received after 12:00 noon shall be treated
for all purposes as having been received by Agent on the first Business Day next
following receipt of such funds. Except as provided in SECTION 12.9 hereof, each
Lender shall be entitled to receive its Pro Rata Share of each payment received
by Agent hereunder for the account of Lenders on the Notes. Each payment
received by Agent hereunder for the account of a Lender shall be promptly
distributed by Agent to such Lender. Agent and each Lender hereby agree that
payments to Agent by Borrower of principal of, and interest on, the Notes, of
fees and of all other amounts payable under this Agreement by Borrower to or for
the account of Lenders in accordance with the terms of this Agreement, the Notes
and the other Loan Documents shall constitute satisfaction of Borrower's
obligations with respect to any such payments, and Agent shall indemnify, and
each Lender shall hold harmless, Borrower from any claims asserted by any Lender
in connection with Agent's duty to distribute and apportion such payments to
Lenders in accordance with this SECTION 3.3. All payments made on the Notes
shall be credited, to the extent of the amount thereof, in the following manner:
(a) first, against all costs, expenses and other fees (including attorneys'
fees) arising under the terms hereof; (b) second, against the amount of interest
accrued and unpaid on the Notes as of the date of such payment; (c) third,
against all principal due and owing on the Notes as of the date of such payment;
and (d) fourth, to all other amounts constituting any portion of the
Obligations.
3.4 CANCELLATION OF AVAILABLE COMMITMENT. So long as no Event of
Default has occurred and upon ten (10) days' prior written notice to Agent,
Borrower may, without premium or penalty, cancel the Available Commitment, in
whole or in part; provided, however, Borrower shall pay to Agent, for the
benefit of Lenders, concurrently with the notice of such cancellation, the
accrued and unpaid Commitment Fee due through the effective date of such
cancellation. Notwithstanding the foregoing, the minimum cancellation amount
shall be $1,000,000 and cancellations greater than such minimum shall be in
increments of $1,000,000. Any cancellation of the Available Commitment shall be
made on a pro rata basis among Lenders.
3.5 VOLUNTARY PREPAYMENTS. So long as no Event of Default and upon five
(5) Business Days' prior written notice to Agent, Borrower may, without premium
or penalty, prepay the principal of the Notes then
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outstanding, in whole or in part, on the last day of any Interest Period;
provided, however, should Borrower prepay a Floating Base Loan, Borrower need
only provide to Agent one business day's prior written notice of such
prepayment. Notwithstanding the foregoing, (a) the minimum prepayment amount
under this SECTION 3.5 shall be $1,000,000 and prepayments greater than such
minimum shall be in increments of $1,000,000; and (b) if any prepayment of a
Eurodollar Loan is made on a date other than the last day of an Interest Period
for such Eurodollar Loan, Borrower shall also pay any amounts owing pursuant to
SECTION 4.
3.6 MANDATORY PREPAYMENTS. If at any time from and after the Closing
Date: (a) Borrower merges or consolidates with another Person and Borrower is
not the surviving entity; (b) Borrower or any Consolidated Subsidiary or any
Minority Holding sells, transfers, assigns or conveys assets (other than those
among Borrower and the Consolidated Subsidiaries or those constituting mortgages
secured by real property), the book value of which (computed in accordance with
GAAP but without deduction for depreciation), in the aggregate of all such
sales, transfers, assignments, foreclosures, or conveyances exceeds 25% of the
then Capitalization Value in any twelve (12) month period; (c) the portion of
Capitalization Value attributable to the aggregate Minority Holdings (other than
the Mortgage Subsidiaries and Sale-Leaseback Subsidiaries) of Borrower and the
Consolidated Subsidiaries exceeds 15% of Capitalization Value; or (d) Borrower
or its Affiliate ceases to provide property management and leasing services to
75% of the total number of Real Properties in which Borrower has an ownership
interest (the date any such event shall occur being the "MANDATORY PREPAYMENT
DATE"), the Available Commitment shall terminate and Borrower shall prepay the
Loans in their entirety as if the Mandatory Prepayment Date were the Maturity
Date. Borrower shall immediately make such prepayment together with interest
accrued to the date of the prepayment on the principal amount prepaid. In
connection with the prepayment of any Loan prior to the maturity thereof,
Borrower shall also pay any applicable expenses pursuant to SECTION 4.5. Each
such prepayment shall be applied to prepay ratably the Loans of the Lenders.
3.7 TAXES.
(1) EXCLUDED TAXES. Any and all payments by Borrower hereunder
and under the Notes shall be made free and clear of and without
deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender: (i) taxes imposed on
its income, and franchise taxes imposed on it, by the jurisdiction
under the laws of which Lender is organized or any political
subdivision thereof and, in the case of each Lender, taxes imposed on
its income, and franchise taxes imposed on it, by the jurisdiction of
each Lender's applicable lending office or any political subdivision
thereof; and (ii) any taxes imposed by the United States of America by
means of withholding at the source if and to the extent that such taxes
shall be in effect and shall be applicable, on the date hereof, to
payments to be made to each Lender (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities
being hereinafter referred to as "TAXES").
If Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder to a Lender: (i) the sum
payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums
payable under this SECTION 3.7) such Lender receives an amount equal to
the sum it would have received had no such deductions been made; (ii)
Borrower shall make such deductions; and (iii) Borrower shall pay the
full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(2) PERMITTED TAXES. Notwithstanding anything to the contrary
contained in this Agreement, Borrower shall be entitled, to the extent
required by law, to deduct or withhold income or
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other similar taxes imposed by the United States of America from
interest, fees or other amounts payable hereunder for the account of
any Lender (without the payment of increased amounts to such Lender
pursuant to CLAUSE (a) above) other than a Lender that: (i) is a
domestic corporation (as such term is defined in Section 7701 of the
Internal Revenue Code) for federal income tax purposes; or (ii) has the
Prescribed Forms on file with Borrower to the extent deduction or
withholding of such taxes is not required as a result of the filing of
such Prescribed Forms, provided that upon any such deduction or
withholding, Borrower shall provide a statement to such Lender, setting
forth the amount of such deduction or withholding, the applicable rate
and any other information or documentation which such Lender may
reasonably request for assisting such Lender to obtain any allowable
credits or deductions for such deduction or withholding in the
jurisdiction or jurisdictions in which such Lender is subject to tax.
(3) OTHER TAXES. In addition, Borrower agrees to pay any
present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies that arise from any payment
made hereunder or from the execution, delivery or registration of,
otherwise with respect to, this Agreement (hereinafter referred to as
"OTHER TAXES").
(4) TAX INDEMNIFICATION. Borrower will indemnify each Lender
for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this SECTION 3.7) paid by a Lender and any
liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, except as a result of the gross
negligence or willful misconduct of such Lender, whether or not such
Taxes or Other Taxes were correctly or legally asserted. Any payment
pursuant to this SECTION 3.7(d) shall be made within thirty (30) days
from the date such Lender makes written demand therefor.
(5) EVIDENCE OF TAX PAYMENTS. Within thirty (30) days after
the date of any payment of Taxes by or at the direction of Borrower,
Borrower will furnish to the applicable Lender, the original or a
certified copy of a receipt evidencing payment thereof.
(6) SELECTION OF LENDING OFFICE. Each Lender shall endeavor in
good faith (consistent with its internal policies and legal and
regulatory restrictions) to select a jurisdiction for its lending
office or change the jurisdiction for its lending office, as the case
may be, so as to avoid the imposition of any Taxes or Other Taxes or to
eliminate the amount of any such additional amounts which may
thereafter accrue; provided that no such selection or change of the
jurisdiction for its lending office shall be made if, in the reasonable
judgment of such Lender, such selection or change would be
disadvantageous to such Lender.
(7) SURVIVAL OF AGREEMENTS. Without prejudice to the survival
of any other agreement of Borrower hereunder, the agreements and
obligations of Borrower contained in this SECTION 3.7 shall survive the
payment in full of the Obligations.
3.8 LENDING OFFICE. Each Lender may: (a) designate its principal office
or a foreign branch, subsidiary or Affiliate of such Lender as its lending
office (and the office to whose accounts payments are to be credited) for any
Eurodollar Loan; (b) designate its principal office or a domestic branch,
subsidiary or Affiliate as its lending office (and the office to whose accounts
payments are to be credited) for any Floating Base Loan; and (c) change its
lending offices from time to time by notice to Agent and Borrower. In such
event, such Lender shall continue to hold the Note evidencing its loans for the
benefit and account of such foreign branch, subsidiary
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or Affiliate. Each Lender shall be entitled to fund all or any portion of its
Commitment in any manner it deems appropriate. But for the purposes of this
Agreement, such Lender shall, regardless of such Lender's actual means of
funding, be deemed to have funded its Commitment in accordance with the Interest
Option selected from time to time by Borrower for such Loan period.
3.9 AGENT FEES. Borrower shall pay to Agent fees in consideration of
the arrangement and administration of the Commitments, which fees shall be
payable in amounts and on the dates agreed to between Borrower and Agent in a
letter agreement of even date herewith. Such fees are not compensation for the
use, detention, or forbearance of money, is in addition to, and not in lieu of,
interest and expenses otherwise described in this Agreement, is non-refundable,
and bears interest (to the fullest extent permitted by Law and, if not paid when
due, at the Default Rate).
3.10 COMMITMENT FEE. Borrower shall pay to Agent, for the account of
Lenders, a commitment fee ("COMMITMENT FEE"), accruing at a rate per annum
(computed on a 360 day basis), payable on the Commitment Termination Date, equal
to one-half percent (0.5%) of the average daily amount of the unused portion of
the Available Commitment during the Availability Period. Borrower and Lenders
acknowledge and agree that the Commitment Fee is a bona fide commitment fee and
is intended as reasonable compensation to Lenders for committing to make funds
available to Borrower as described herein and for no other purposes.
3.11 MAXIMUM INTEREST RATE. Regardless of any provision in any Loan
Document, Lender is never entitled to receive, collect, or apply as interest on
the Obligations any amount in excess of interest calculated at the Maximum Rate.
If Lender ever receives, collects, or applies as interest any such excess, then:
(a) the amount which would be excessive interest is deemed to be a partial
prepayment of principal and treated as such; and (b) if the principal of the
Obligations is fully paid, any remaining excess shall be paid to Borrower.
SECTION 4 SPECIAL PROVISIONS FOR EURODOLLAR LOANS.
4.1 INADEQUACY OF EURODOLLAR LOAN PRICING. If, with respect to an
Interest Period for any Eurodollar Loan, Agent determines that deposits in
Dollars (in the applicable amounts) are not being offered by Agent in the
applicable interbank Eurodollar market for such Interest Period, then Agent
shall forthwith give notice thereof to Borrower, whereupon until Agent notifies
Borrower that the circumstances giving rise to such suspension no longer exist:
(a) the obligation of Lenders to make Eurodollar Loans shall be suspended; and
(b) Borrower shall either: (i) repay in full the then outstanding principal
amount of such Eurodollar Loan, together with accrued interest thereon on the
last day of the then current Interest Period applicable to such Eurodollar Loan;
or (ii) convert such Eurodollar Loan to a Floating Base Loan in accordance with
the terms of this Agreement on the last day of the then current Interest Period
applicable to each such Eurodollar Loan.
4.2 ILLEGALITY. If, after the date of this Agreement, the adoption of
any applicable law, rule, or regulation, or any change therein, or any change in
the interpretation or administration thereof by any Governmental Authority,
central bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Eurodollar lending
office) with any request or directive (whether or not having the force of law)
of any such Governmental Authority, central bank, or comparable agency shall
make it unlawful or impossible for any Lender (or its Eurodollar lending office)
to make, maintain, or fund any type of Eurodollar Loans, then such Lender shall
so notify Agent, and Agent shall forthwith give notice thereof to Borrower and
Lenders. Before giving notice to Agent pursuant to this SECTION 4.2, such Lender
shall designate a different Eurodollar lending office, if such designation will
avoid the need for giving such notice and will not be otherwise disadvantageous
to any material extent to such Lender (as determined in good faith by such
Lender).
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Upon receipt of such notice, Borrower shall either: (a) repay in full the then
outstanding principal amount of such Eurodollar Loan, together with accrued
interest thereon; or (b) convert such Eurodollar Loan to a Floating Base Loan on
either: (i) the last day of the then current Interest Period applicable to each
such Eurodollar Loan if such Lender may lawfully continue to maintain and fund
such Eurodollar Loan to such day; or (ii) immediately if such Lender may not
lawfully continue to fund and maintain such Eurodollar Loan to such day.
4.3 INCREASED COSTS FOR EURODOLLAR LOANS. If any Governmental
Authority, central bank, or other comparable authority shall at any time impose,
modify, or deem applicable any law, rule, regulation or guideline regarding
capital adequacy or reserve (including, without limitation, any imposed by the
Board of Governors of the Federal Reserve System or pursuant to or arising out
of the July 1988 report of the Basle Committee on Banking Regulations and
Supervisory Practices entitled "International Convergence of Capital Measurement
and Capital Standards" but excluding any reserve requirement included in the
Eurodollar Reserve Requirement of each Lender (or its Eurodollar lending
office)) special deposit or similar requirement against assets of, deposits with
or for the account of, or credit extended by any Lender (or its Eurodollar
lending office), or shall impose on any Lender (or its Eurodollar lending
office) or the applicable interbank Eurodollar market any other condition
affecting any type of its Eurodollar Loan, its Note, or the obligation to make
any type of Eurodollar Loan; and the result of any of the foregoing is to
increase the cost to any Lender of making or maintaining any type of Eurodollar
Loan, or to reduce the amount of any sum received or receivable by Lender under
this Agreement or under its Note with respect to any Eurodollar Loan, by an
amount reasonably deemed by such Lender to be material, then, within five (5)
days after demand by such Lender (with a copy to Agent), Borrower shall pay to
such Lender, such additional amount or amounts as will compensate such Lender
for such increased cost or reduction. Each Lender will promptly notify Borrower
and Agent of any event of which it has knowledge, occurring after the date
hereof, which will entitle such Lender to compensation pursuant to this SECTION
4.3 and, in connection with Eurodollar Loans, will, to the extent possible,
designate a different Eurodollar lending office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not be
otherwise disadvantageous to any material extent to such Lender (as determined
in good faith by such Lender). A certificate of such Lender claiming
compensation under this SECTION 4.3 and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. If any Lender demands compensation under this SECTION 4.3, then
Borrower may at any time, upon at least three (3) Business Days' prior notice to
Agent either: (a) repay in full the then outstanding principal amount of such
Eurodollar Loan, together with accrued interest thereon to the date of
prepayment; or (b) convert such Eurodollar Loan to a Floating Base Loan in
accordance with the provisions of this Agreement; provided however, that
Borrower shall be liable for any Consequential Loss arising pursuant to such
actions.
4.4 EFFECT ON EURODOLLAR LOANS AND FLOATING BASE LOANS. If notice has
been given pursuant to SECTIONS 4.1 or 4.2 hereof requiring the then outstanding
Eurodollar Loans of Lenders to be repaid or converted, then unless and until
Lender notifies Borrower and Agent that the circumstances giving rise to such
repayment no longer apply, all Loans shall be Floating Base Loans. If such
Lender notifies Borrower and Agent that the circumstances giving rise to such
repayment no longer apply, Borrower may thereafter select Loans to be Eurodollar
Loans in accordance with the terms hereof.
4.5 PAYMENTS NOT AT END OF INTEREST PERIOD. If Borrower makes any
payment of principal with respect to any Eurodollar Loan on any day other than
the last day of an Interest Period applicable to such Eurodollar Loan, then
Borrower shall pay to Agent for the account of such Lender after demand by such
Lender (with a copy to Agent) the Consequential Loss incurred by such Lender as
a result of the timing of such payment. A certificate of such Lender setting
forth the basis for the determination of the amount of Consequential Loss shall
be delivered to Borrower, and Agent and shall, in the absence of manifest error,
be conclusive and binding.
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Any conversion of a Eurodollar Loan to a Floating Base Loan on any day other
than the last day of the Interest Period for such Eurodollar Loan shall be
deemed a payment for purposes of this SECTION 4.5.
4.6 INDEMNITY. Without prejudice to any other provisions of this
SECTION 4.6, Borrower shall indemnify each Lender against any loss or expense
which such Lender may sustain or incur as a consequence of any default by
Borrower in making any payment when due of any amount due under this Agreement
or in making any scheduled Loan, Rollover, or conversion under this Agreement,
in respect of any Eurodollar Loan, including, but not limited to, any loss of
profit, premium or penalty incurred by such Lender in respect of funds borrowed
by it for the purpose of making, funding or maintaining such Eurodollar Loan, as
determined by such Lender in the exercise of its sole but reasonable discretion.
A certificate as to any such loss or expense shall be promptly submitted by such
Lender to Borrower (with a copy to Agent) and shall, in the absence of manifest
error, be conclusive and binding as to the amount thereof.
SECTION 5 CONDITIONS PRECEDENT.
The obligation of Lenders to honor the terms and conditions herein is
conditioned upon Agent's receipt of all items set forth on SCHEDULE 5 attached
hereto and made a part hereof. In addition, the obligation of Lenders to fund
any Loan on the applicable Borrowing Date is subject to the conditions that,
after giving effect to the requested Loan: (a) all of the representations and
warranties in the Loan Documents are true and correct in all material respects
as of such Borrowing Date (unless any such representation and warranty: (i)
refers to a specific date; and (ii) is already qualified by a materiality
concept, in which case such representation and warranty must be true and correct
in all respects as of such Borrowing Date); (b) no Material Adverse Effect,
Event of Default, or Potential Default exists; and (c) no limitation in SECTION
2.1 is exceeded. Each Request for Borrowing constitutes Borrower's
representation and warranty that the conditions in CLAUSES (a) through (c) above
are satisfied. Upon Agent's reasonable request, Borrower shall deliver to Agent
evidence substantiating any of the matters in the Loan Documents that are
necessary to enable Borrower to qualify for any Loan. Each condition precedent
in this Agreement (including, without limitation, the delivery of each item set
forth on SCHEDULE 5) is material to the transactions contemplated by this
Agreement, and time is of the essence with respect to each condition precedent.
A form of legal opinion as described in SCHEDULE 5 is attached hereto as EXHIBIT
H.
SECTION 6 REPRESENTATIONS AND WARRANTIES.
6.1 REPRESENTATIONS AND WARRANTIES OF BORROWER. In order to induce
Agent, on behalf of Lenders, to enter into this Agreement and to make the Loans
and the other financial accommodations to Borrower described herein, Borrower
hereby represents and warrants to each Lender that the following statements are
true, correct and complete:
6.2 ORGANIZATION; POWERS.
(1) Borrower: (i) is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of
Delaware; (ii) is duly qualified to do business and is in good standing
under the laws of each jurisdiction in which failure to be so qualified
and in good standing will have or is reasonably likely to have a
Material Adverse Effect; (iii) has all requisite power and authority to
own and operate its Property and to conduct its business as presently
conducted and as proposed to be conducted in connection with and
following the consummation of the transactions contemplated by this
Agreement; and (iv) is a partnership for federal income tax purposes.
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(2) General Partner: (i) is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware; (ii) is duly authorized and qualified to do business and is
in good standing under the laws of each jurisdiction in which failure
to be so qualified and in good standing will have or is reasonably
likely to have a Material Adverse Effect; and (iii) has all requisite
corporate power and authority to own and operate its Property and to
conduct its business as presently conducted.
(3) True, correct and complete copies of the Organizational
Documents of Borrower and General Partner have been delivered to Agent,
each of which is in full force and effect, and has not been modified or
amended except to the extent set forth therein; and, to the best of
Borrower's knowledge, there are no defaults under such Organizational
Documents and no events which, with the passage of time or giving of
notice or both, would constitute a default under such Organizational
Documents.
(4) Neither Borrower nor any of its Affiliates are "foreign
persons" within the meaning of Section 1445 of the Internal Revenue
Code.
6.3 AUTHORITY.
(1) General Partner has the requisite power and authority to
execute, deliver and perform this Agreement on behalf of Borrower and
each of the other Loan Documents required to be executed on behalf of
Borrower as required by this Agreement. General Partner is the Person
who has executed this Agreement and such other Loan Documents on behalf
of Borrower and is the sole general partner of Borrower.
(2) The execution, delivery and performance of each of the
Loan Documents that is executed in connection with this Agreement by
Borrower and to which Borrower is a party and the consummation of the
transactions contemplated thereby are within Borrower's partnership
powers, have been duly authorized by all necessary partnership action
(and, in the case of General Partner acting on behalf of Borrower and
in its individual capacity in connection therewith, all necessary
corporate action thereof) and such authorization has not been
rescinded. No other partnership or corporate action or proceedings on
the part of Borrower or General Partner are necessary to consummate
such transactions.
(3) Each of the Loan Documents to which Borrower is a party
has been duly executed and delivered on behalf of Borrower and
constitutes Borrower's legal, valid and binding obligation, enforceable
against Borrower in accordance with its terms, is in full force and
effect and all the terms, provisions, agreements and conditions set
forth therein and required to be performed or complied with by Borrower
and the Subsidiaries on or before the Closing Date have been performed
or complied with, and no Potential Event of Default, Event of Default
or breach of any covenant by any of Borrower or any Subsidiary exists
thereunder.
6.4 SUBSIDIARIES.
(1) SCHEDULE 6.4: (i) contains a diagram indicating the
corporate structure of Borrower, and any other Person in which Borrower
holds a direct or indirect partnership, joint venture or other equity
interest indicating the nature of such interest with respect to each
Person included in such diagram; and (ii) accurately sets forth: (A)
the correct legal name of such Person, the jurisdiction of its
incorporation or organization and the jurisdictions in which it is
qualified to transact business as a foreign corporation,
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or otherwise; and (B) the authorized, issued and outstanding shares or
interests of each class of Securities of Borrower and the Subsidiaries
and the owners of such shares or interests. None of such issued and
outstanding Securities is subject to any vesting, redemption, or
repurchase agreement, and there are no warrants or options outstanding
with respect to such Securities, except as noted on SCHEDULE 6.4. The
outstanding Capital Stock of General Partner is duly authorized,
validly issued, fully paid and nonassessable and the outstanding
Securities of Borrower and the Subsidiaries are duly authorized and
validly issued.
(2) Except where failure may not have a Material Adverse
Effect on Borrower, each Subsidiary: (i) is a corporation, limited
liability company, limited partnership or business trust, as indicated
on SCHEDULE 6.4, duly organized, validly existing and, if applicable,
in good standing under the laws of the jurisdiction of its
organization; (ii) is duly qualified to do business and, if applicable,
is in good standing under the laws of each jurisdiction in which
failure to be so qualified and in good standing would limit its ability
to use the courts of such jurisdiction to enforce Contractual
Obligations to which it is a party; and (iii) has all requisite power
and authority to own, operate and encumber its Property and to conduct
its business as presently conducted and as proposed to be conducted
hereafter.
6.5 NO CONFLICT. The execution, delivery and performance of each of the
Loan Documents to which Borrower is a party do not and will not: (a) conflict
with the Organizational Documents of Borrower or any Subsidiary; (b) constitute
a tortious interference with any Contractual Obligation of any Person or
conflict with, result in a breach of or constitute (with or without notice or
lapse of time or both) a default under any Requirement of Law or Contractual
Obligation of Borrower, any Limited Partner, any Subsidiary, or any general or
limited partner of any Subsidiary, or require termination of any such
Contractual Obligation which may subject Agent or any of the other Lenders to
any liability; (c) result in or require the creation or imposition of any Lien
whatsoever upon any of the Property or assets of Borrower, any Limited Partner,
any Subsidiary, or any general partner or limited partner of any Subsidiary; or
(d) require any approval of shareholders of General Partner or any general
partner (or equity holder of any general partner) of any Subsidiary.
6.6 GOVERNMENTAL CONSENTS. The execution, delivery and performance of
each of the Loan Documents to which Borrower is a party do not and will not
require any registration with, consent or approval of, or notice to, or other
action to, with or by any Governmental Authority, except filings, consents or
notices which have been made, obtained or given.
6.7 GOVERNMENTAL REGULATION. Neither Borrower nor General Partner is
subject to regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act, the Interstate Commerce Act, or the Investment Company Act of
4940, or any other federal or state statute or regulation which limits its
ability to incur indebtedness or its ability to consummate the transactions
contemplated by this Agreement.
6.8 FINANCIAL POSITION. Complete and accurate copies of the following
financial statements and materials have been delivered to Agent: (a) annual
audited financial statements of General Partner, Borrower and the Subsidiaries
for the fiscal year ended December 31, 1998; and (b) quarterly financial
statements for General Partner, Borrower and the Subsidiaries for the fiscal
quarter ending December 31, 1998. All financial statements included in such
materials were prepared in all material respects in conformity with GAAP, except
as otherwise noted therein, and fairly present in all material respects the
respective consolidated financial positions, and the consolidated results of
operations and cash flows for each of the periods covered thereby of the General
Partner, Borrower and the Subsidiaries as at the respective dates thereof. None
of General Partner, Borrower, or any Subsidiary has any Contingent Obligation,
contingent liability or liability for any taxes, long-term leases or
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commitments, not reflected in its audited financial statements delivered to
Agent on or prior to the Closing Date or otherwise disclosed to Agent and the
other Lenders in writing, which will have or is reasonably likely to have a
Material Adverse Effect.
6.9 INDEBTEDNESS. SCHEDULE 6.9 sets forth, as of the date hereof, all
Indebtedness for borrowed money of each of General Partner, Borrower, and the
Subsidiaries, and identifying with particularity whether each such item of
Indebtedness is Unsecured Indebtedness or Secured Indebtedness; and, except as
set forth therein, there are no defaults in the payment of principal or interest
on any such Indebtedness; no payments thereunder have been deferred or extended
beyond their stated maturity; and there has been no material change in the type
or amount of such Indebtedness since December 31, 1998.
6.10 LITIGATION; ADVERSE EFFECTS. Except as set forth in SCHEDULE 6.10,
as of the Closing Date, there is no action, suit, proceeding, Claim,
investigation or arbitration before or by any Governmental Authority or private
arbitrator pending or, to the knowledge of Borrower, threatened against
Borrower, any Subsidiary, or any Property of any of them: (a) challenging the
validity or the enforceability of any of the Loan Documents; (b) which will or
is reasonably likely to result in any Material Adverse Effect; or (c) under the
Racketeering Influenced and Corrupt Organizations Act or any similar federal or
state statute where such Person is a defendant in a criminal indictment that
provides for the forfeiture of assets to any Governmental Authority as a
potential criminal penalty. There is no material loss contingency within the
meaning of GAAP which has not been reflected in the consolidated financial
statements of Borrower. Neither Borrower nor any Subsidiary is: (a) in violation
of any applicable Requirements of Law which violation will have or is reasonably
likely to have a Material Adverse Effect; or (b) subject to or in default with
respect to any final judgment, writ, injunction, restraining order or order of
any nature, decree, rule or regulation of any court or Governmental Authority
which will have or is reasonably likely to have a Material Adverse Effect.
6.11 NO MATERIAL ADVERSE EFFECT. There has occurred no event which has
had or is reasonably likely to have a Material Adverse Effect since the date of
the most recent financial statements delivered to Agent.
6.12 TAX EXAMINATIONS. The IRS has examined (or is foreclosed from
examining by applicable statutes) the federal income tax returns of any of
Borrower's or the Subsidiaries' predecessors in interest with respect to the
Properties for all tax periods prior to and including the taxable year ending
December 31, 1994 and the appropriate state Governmental Authority in each state
in which Borrower's or the Subsidiaries' predecessors in interest with respect
to the Properties were required to file state income tax returns has examined
(or is foreclosed from examining by applicable statutes) the state income tax
returns of any of such Persons with respect to the Properties for all tax
periods prior to and including the taxable year ending December 31, 1994. All
deficiencies asserted against such Persons as a result of any federal, state,
local or foreign tax examination for each taxable year, in respect of which an
examination has been conducted, have been fully paid or finally settled or are
being contested in good faith, and no issue has been raised in any such
examination which, by application of similar principles, reasonably can be
expected to result in assertion of a material deficiency for any other year not
so examined which has not been reserved for in the financial statements of such
Persons to the extent, if any, required by GAAP. No such Person has taken any
reporting positions for which it does not have a reasonable basis nor
anticipates any further material tax liability with respect to the years which
have not been closed pursuant to applicable law.
6.13 PAYMENT OF TAXES. All tax returns, reports and similar statements
or filings of each of Borrower and each Subsidiary required to be filed have
been timely filed, and, except for Customary Permitted Liens, all taxes,
assessments, fees and other charges of Governmental Authorities thereupon and
upon or relating
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to their respective Properties, assets, receipts, sales, use, payroll,
employment, income, licenses and franchises which are shown in such returns or
reports to be due and payable have been paid, except to the extent: (a) such
taxes, assessments, fees and other charges of Governmental Authorities are being
contested in good faith by an appropriate proceeding diligently pursued as
permitted by the terms of SECTION 8.4; and (b) such taxes, assessments, fees and
other charges of Governmental Authorities pertain to Property of Borrower or any
Subsidiary and the non-payment of the amounts thereof would not, individually or
in the aggregate, result in a Material Adverse Effect. All other taxes
(including, without limitation, real estate taxes), assessments, fees and other
governmental charges upon or relating to the respective Properties of Borrower
and the Subsidiaries that are due and payable have been paid, except for
Customary Permitted Liens and except to the extent described in CLAUSES (a) and
(B) above. Borrower has no knowledge of any proposed tax assessment against
Borrower, any Subsidiary, or any of the Properties that will have or is
reasonably likely to have a Material Adverse Effect.
6.14 PERFORMANCE. Neither Borrower nor any Subsidiary has received any
notice, citation or allegation, nor has actual knowledge, that: (a) it is in
default in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any Contractual Obligation applicable to
it; (b) any of its Properties is in violation of any Requirements of Law; or (c)
any condition exists which, with the giving of notice or the lapse of time or
both, would constitute a default with respect to any such Contractual
Obligation, in each case, except where such default or defaults, if any, will
not have or are not reasonably likely to have a Material Adverse Effect.
6.15 DISCLOSURE. The representations and warranties of Borrower
contained in the Loan Documents, and all certificates and other documents
delivered to Agent pursuant to terms thereof, do not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements contained herein or therein, in light of the
circumstances under which they were made, not misleading. Borrower has not
intentionally withheld any fact from Agent or the other Lenders in regard to any
matter which will have or is reasonably likely to have a Material Adverse
Effect. Notwithstanding the foregoing, the Lenders acknowledge that Borrower
shall not have liability under this SECTION 6.15 with respect to its projections
of future events; provided, however, that the representations and warranties of
Borrower contained in the Loan Documents, and all certificates and other
documents delivered to Agent pursuant to the terms thereof, unless otherwise
required by the express provisions of the applicable Loan Documents, are not
based upon Borrower's projections of future events.
6.16 REQUIREMENTS OF LAW. Borrower and each Subsidiary are in
compliance with all Requirements of Law applicable to each of them and their
respective businesses and Properties, in each case where the failure to so
comply individually or in the aggregate will have or is reasonably likely to
have a Material Adverse Effect.
6.17 ENVIRONMENTAL MATTERS.
(1) Except as disclosed on SCHEDULE 6.17:
(1) the operations of Borrower, each Subsidiary, and
their respective Properties comply with all applicable
Environmental, Health or Safety Requirements of Law;
(2) Borrower and each Subsidiary have, obtained all
material environmental, health and safety Permits necessary
for their respective operations, and all such Permits are in
good standing and the holder of each such Permit is currently
in compliance with all terms and conditions of such Permits;
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(3) none of Borrower, any Subsidiary or any of their
respective present or past Property or operations is subject
to, or is the subject of, any investigation, judicial or
administrative proceeding, order, judgment, decree, dispute,
negotiations, agreement or settlement respecting: (A) any
Environmental, Health or Safety Requirements of Law; (B) any
Remedial Action; (C) any Claims or Liabilities and Costs
arising from the Release or threatened Release of Hazardous
Material into the environment; or (D) any violation of or
liability under any Environmental, Health or Safety
Requirement of Law which, with respect to any of the foregoing
for which there does not exist an indemnity which meets the
requirements set forth in SECTION 8.12(d), (1) individually,
constitute Claims or Liabilities and Costs which exceed
$50,000, (2) in the aggregate, as of the Closing Date, does
not exceed $2,000,000, and (3) taken as a whole, could
reasonably be expected to result in a Material Adverse Effect;
(4) neither Borrower nor any Subsidiary has filed any
notice under any applicable Requirement of Law: (A) reporting
a Release of Hazardous Material; (B) indicating past or
present treatment, storage or disposal of a hazardous waste,
as that term is defined under 40 C.F.R. Part 261 or any state
equivalent; or (C) reporting a violation of any applicable
Environmental, Health or Safety Requirement of Law;
(5) neither Borrower's nor any Subsidiary' present or
past Property is listed or proposed for listing on the
National Priorities List ("NPL") pursuant to CERCLA or on the
Comprehensive Environmental Response Compensation Liability
Information System List ("CERCLIS") or any similar state list
of sites requiring Remedial Action;
(6) neither Borrower nor any Subsidiary has sent or
directly arranged for the transport of any waste to any site
listed or proposed for listing on the NPL, CERCLIS or any
similar state list;
(7) to the best of Borrower's knowledge, there is not
now, and to Borrower's knowledge there has never been on or in
any Real Property owned by any of the Consolidated Businesses:
(A) any treatment, recycling, storage or disposal of any
hazardous waste, as that term is defined under 40 C.F.R. Part
261; (B) any landfill, waste pile, or surface impoundment; (C)
any underground storage tanks the presence or use of which is
or, to Borrower's knowledge, has been in violation of
applicable Environmental, Health or Safety Requirements of Law
that could reasonably be expected to result in a Material
Adverse Effect; (D) any asbestos-containing material which
such Person has any reason to believe could subject such
Person or its Property to Liabilities and Costs arising out of
or relating to environmental, health or safety matters that
could reasonably be expected to result in a Material Adverse
Effect; or (E) any polychlorinated biphenyls (PCB) used in
hydraulic oils, electrical transformers or other Equipment
which such Person has any reason to believe could subject such
Person or its Property to Liabilities and Costs arising out of
or relating to environmental, health or safety matters that
would result in a Material Adverse Effect;
(8) neither Borrower nor any Subsidiary has received
any notice or Claim to the effect that any of such Persons is
or may be liable to any Person as a result of the Release or
threatened Release of Hazardous Material into the environment;
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(9) neither Borrower nor any Subsidiary has any
contingent liability in connection with any Release or
threatened Release of any Hazardous Materials into the
environment that could result in a Material Adverse Effect;
(10) no Environmental Lien has attached to any
Property of Borrower or any Subsidiary;
(11) no Property of Borrower or any Subsidiary is
subject to any Environmental Property Transfer Act, or to the
extent such acts are applicable to any such Property, Borrower
and/or such Subsidiary whose Property is subject thereto has
fully complied with the requirements of such acts; and
(12) neither Borrower nor any Subsidiary owns or
operates, or, to Borrower's knowledge has ever owned or
operated, any underground storage tank, the presence or use of
which is or has been in violation of applicable Environmental,
Health or Safety Requirements of Law, at any Real Property.
(2) Borrower and each Subsidiary are conducting and will
continue to conduct their respective businesses and operations and
maintain each Real Property in compliance with Environmental, Health or
Safety Requirements of Law and no such Person has been, and no such
Person has any reason to believe that it or any Property will be,
subject to Liabilities and Costs arising out of or relating to
environmental, health or safety matters that would result in a Material
Adverse Effect.
6.18 ERISA. Neither Borrower nor any ERISA Affiliate maintains or
contributes to any Plan or Multiemployer Plan other than those listed on
SCHEDULE 6.18 hereto. Each such Plan which is intended to be qualified under
Section 401(a) of the Internal Revenue Code as currently in effect has been
determined by the IRS to be so qualified, and each trust related to any such
Plan has been determined to be exempt from federal income tax under Section
501(a) of the Internal Revenue Code as currently in effect. Except as disclosed
in SCHEDULE 6.18, neither Borrower nor any Subsidiary maintains or contributes
to any employee welfare benefit plan within the meaning of Section 3(1) of ERISA
which provides benefits to employees after termination of employment other than
as required by Section 601 of ERISA. Borrower and each Subsidiary are in
compliance in all material respects with the responsibilities, obligations and
duties imposed on each of them by ERISA, the Internal Revenue Code and
regulations promulgated thereunder with respect to all Plans. No Plan has
incurred any accumulated funding deficiency (as defined in Sections 302(a) (2)
of ERISA and 412(a) of the Internal Revenue Code) whether or not waived. None of
Borrower, any ERISA Affiliate, or any fiduciary of any Plan that is not a
Multiemployer Plan: (a) has engaged in a nonexempt prohibited transaction
described in Sections 406 of ERISA or 4975 of the Internal Revenue Code; or (b)
has taken or failed to take any action which would constitute or result in a
Termination Event. Neither Borrower nor any ERISA Affiliate is subject to any
liability under Sections 4063, 4064, 4069, 4204 or 4212(c) of ERISA. Neither
Borrower nor any ERISA Affiliate has incurred any liability to the PBGC which
remains outstanding other than the payment of premiums, and there are no premium
payments which have become due which are unpaid. Schedule B to the most recent
annual report filed with the IRS with respect to each Plan and furnished to
Agent is complete and accurate in all material respects. Since the date of each
such Schedule B, there has been no material adverse change in the funding status
or financial condition of the Plan relating to such Schedule B. Neither Borrower
nor any ERISA Affiliate has: (a) failed to make a required contribution or
payment to a Multiemployer Plan; or (b) made a complete or partial withdrawal
under Sections 4203 or 4205 of ERISA from a Multiemployer Plan. Neither Borrower
nor any ERISA Affiliate has failed to make a required installment or any other
required payment under Section 412 of
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the Internal Revenue Code on or before the due date for such installment or
other payment. Neither Borrower nor any ERISA Affiliate is required to provide
security to a Plan under Section 401(a) (29) of the Internal Revenue Code due to
a Plan amendment that results in an increase in current liability for the plan
year. Except as disclosed on SCHEDULE 6.18, neither Borrower nor any Subsidiary
has, by reason of the transactions contemplated hereby, any obligation to make
any payment to any employee pursuant to any Plan or existing contract or
arrangement.
6.19 SECURITIES ACTIVITIES. Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying Margin Stock.
6.20 SOLVENCY. After giving effect to any Loans to be made on the
Closing Date or such other date as Loans requested hereunder are made, and the
disbursement of the proceeds of such Loans pursuant to Borrower's instructions,
Borrower is Solvent.
6.21 INSURANCE. SCHEDULE 6.21 accurately sets forth as of the Closing
Date all insurance policies maintained by Borrower and the Subsidiaries and
programs currently in effect with respect to the respective Property and assets
and business of Borrower and the Subsidiaries, specifying for each such policy
and program: (a) the amount thereof; (b) the risks insured against thereby; (c)
the name of the insurer and each insured party thereunder; (d) the policy or
other identification number thereof; and (e) the expiration date thereof.
Borrower has delivered to Agent copies of all insurance policies set forth on
SCHEDULE 6.21. Such insurance policies and programs are currently in full force
and effect, in compliance with the requirements of SECTION 8.5 hereof and,
together with payment by the insured of scheduled deductible payments, are in
amounts sufficient to cover the replacement value of the respective Property and
assets of Borrower and/or the Subsidiaries.
6.22 REIT STATUS. USRPI qualifies as a REIT under the Internal Revenue
Code.
6.23 OWNERSHIP OF PROPERTY. Ownership of substantially all Property of
the Consolidated Businesses is held by Borrower and the Subsidiaries.
6.24 SENIOR INDEBTEDNESS. The obligations of Borrower and Guarantors
under this Agreement and the other Loan Documents rank pari passu in right of
payment with all other senior unsecured Indebtedness (actual or contingent) of
Borrower and the Guarantors, including, without limitation, all senior unsecured
Indebtedness of Borrower and Guarantors under the Other Credit Facilities and
the Indebtedness listed on SCHEDULE 6.9.
SECTION 7 REPORTING COVENANTS.
Borrower covenants and agrees that so long as any Commitments are
outstanding and thereafter until payment in full of all of the Obligations
(other than indemnities pursuant to SECTION 12.1 not yet due), unless the
Requisite Lenders shall otherwise give prior written consent thereto:
7.1 BORROWER ACCOUNTING PRACTICES. Borrower shall maintain, and cause
each Subsidiary to maintain, a system of accounting established and administered
in accordance with sound business practices to permit preparation of
consolidated and consolidating financial statements in conformity with GAAP, and
each of the financial statements and reports described below shall be prepared
from such system and records and in form satisfactory to the Requisite Lenders.
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7.2 FINANCIAL REPORTS. Borrower shall deliver or cause to be delivered
to Agent and the other Lenders:
(1) QUARTERLY REPORTS.
(1) BORROWER QUARTERLY FINANCIAL REPORTS. As soon as
practicable, and in any event within forty-five (45) days
after the end of each fiscal quarter in each Fiscal Year
(other than the last fiscal quarter in each Fiscal Year), a
consolidated balance sheet of Borrower and the related
consolidated statements of income and cash flow of Borrower
(to be prepared and delivered quarterly in conjunction with
the other reports delivered hereunder at the end of each
fiscal quarter) for each such fiscal quarter, in each case in
form and substance satisfactory to Agent and, in comparative
form, the corresponding figures for the corresponding periods
of the previous Fiscal Year, certified by an Authorized
Financial Officer of General Partner as fairly presenting the
consolidated financial position of Borrower as of the dates
indicated and the results of their operations and cash flow
for the months indicated in accordance with GAAP, subject to
normal quarterly adjustments.
(2) QUARTERLY COMPLIANCE CERTIFICATES. Together with
each delivery of any quarterly report pursuant to CLAUSE (a)
(i) of this SECTION 7.2, Borrower shall deliver Officer's
Certificates of Borrower in the form attached hereto as
EXHIBIT D, signed by Borrower's respective Authorized
Financial Officers representing and certifying: (A) that the
Authorized Financial Officer signatory thereto has reviewed
the terms of the Loan Documents, and has made, or caused to be
made under his/her supervision, a review in reasonable detail
of the transactions and consolidated financial condition of
Borrower and the Subsidiaries, during the fiscal quarter
covered by such reports, that such review has not disclosed
the existence during or at the end of such fiscal quarter, and
that such officer does not have knowledge of the existence as
of the date of such Officer's Certificate, of any condition or
event which constitutes an Event of Default or Potential Event
of Default or mandatory prepayment event, or, if any such
condition or event existed or exists, and specifying the
nature and period of existence thereof and what action
Borrower or any Subsidiary has taken, is taking and proposes
to take with respect thereto; (B) the calculations (with such
specificity as Agent may reasonably request) for the period
then ended which demonstrate compliance with the covenants and
financial ratios set forth in SECTIONS 8 and 9 and, when
applicable, that no Event of Default described in SECTION 10.1
exists; (C) a schedule of Borrower's outstanding Indebtedness,
including the amount, maturity, interest rate and amortization
requirements, as well as such other information regarding such
Indebtedness as may be reasonably requested by Agent; (D) a
schedule of Combined EBITDA; (E) calculations, in the form of
EXHIBIT E attached hereto, evidencing compliance with each of
the financial covenants set forth in SECTION 9 hereof; (F) a
schedule of the estimated taxable income of Borrower for such
fiscal quarter; (G) a schedule of all tenant bankruptcies
filed or continuing and an aging of account receivables for
such fiscal year; and (H) a rent roll, tenant sales report and
income statement (if such sales report and income statement
are available to Borrower) with respect to any Real Property
owned in whole or in part by any of the Consolidated
Businesses.
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(2) ANNUAL REPORTS.
(1) BORROWER FINANCIAL STATEMENTS. As soon as
practicable, and in any event within ninety (90) days after
the end of each Fiscal Year: (A) the Financial Statements of
Borrower and the Subsidiaries as at the end of such Fiscal
Year; (B) a report with respect thereto of Deloitte & Touche
L.L.P. or other nationally recognized independent certified
public accountants acceptable to Agent, which report shall be
unqualified and shall state that such financial statements
fairly present the consolidated and consolidating financial
position of Borrower and the Subsidiaries as at the dates
indicated and the results of their operations and cash flow
for the periods indicated in conformity with GAAP applied on a
basis consistent with prior years (except for changes with
which Deloitte & Touche L.L.P. or any such other nationally
recognized independent certified public accountants, if
applicable, shall concur and which shall have been disclosed
in the notes to the financial statements); and (C) in the
event that the report referred to in CLAUSE (ii) above is
qualified, a copy of the management letter or any similar
report delivered to Borrower or to any officer or employee
thereof by such independent certified public accountants in
connection with such financial statements (which letter or
report shall be subject to the confidentiality limitations set
forth herein and shall set forth such independent certified
public accountants' knowledge of events which would give rise
hereunder to mandatory prepayment, Events of Default and
Potential Events of Default, if any). Agent and each Lender
may, with the consent of Borrower (which consent shall not be
unreasonably withheld), communicate directly with such
accountants, with any such communication to occur together
with a representative of Borrower, at the expense of Agent (or
the Lender requesting such communication), upon reasonable
notice and at reasonable times during normal business hours.
(2) ANNUAL COMPLIANCE CERTIFICATES. Together with
each delivery of any annual report pursuant to CLAUSES (i) and
(ii) of this SECTION 7.2(b), Borrower shall deliver Officer's
Certificates of Borrower in the form attached hereto as
EXHIBIT D, signed by Borrower's respective Authorized
Financial Officers, representing and certifying: (A) that the
officer signatory thereto has reviewed the terms of the Loan
Documents, and has made, or caused to be made under his/her
supervision, a review in reasonable detail of the transactions
and consolidated and consolidating financial condition of
Borrower and the Subsidiaries, during the accounting period
covered by such reports, that such review has not disclosed
the existence during or at the end of such accounting period,
and that such officer does not have knowledge of the existence
as at the date of such Officer's Certificate, or any condition
or event which constitutes an Event of Default or Potential
Event of Default or mandatory prepayment event, or, it any
such condition or event existed or exists, and specifying the
nature and period of existence thereof and what action
Borrower or any Subsidiary has taken, is taking and proposes
to take with respect thereto; (B) the calculations (with such
specificity as Agent may reasonable request) for the period
then ended which demonstrate compliance with the covenants and
financial ratios set forth in SECTIONS 8 and 9 and, when
applicable, that of Event of Default described in SECTION 10.1
exists; (C) a schedule of Borrower's outstanding Indebtedness
including the amount, maturity, interest rate and amortization
requirements, as well as such other information regarding such
Indebtedness as may be reasonably requested by Agent; (D) a
schedule of Combined EBITDA; (E) calculations, in the form of
EXHIBIT E attached hereto, evidencing compliance with each of
the financial covenants set forth in SECTION 9 hereof; (F) a
schedule of the estimated taxable income of Borrower for such
fiscal year; (G) a schedule of all Capital Expenditures for
such fiscal year together with a budget of planned Capital
Expenditures for the fiscal year immediately following such
fiscal year; and (H) a rent roll,
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tenant sales report and income statement with respect to any
Real Property owned in whole or in part by any of the
Consolidated Businesses.
(3) TENANT BANKRUPTCY REPORTS. As soon as
practicable, and in any event within ninety (90) days after
the end of each Fiscal Year, Borrower shall deliver a written
report, in form reasonably satisfactory to Agent, of all
bankruptcy proceedings filed by or against any tenant of any
of the Real Properties, the base rent payments of which tenant
account for more than 2% of Borrower's share of consolidated
minimum rent in the Real Properties in the aggregate. Borrower
shall deliver to Agent and the other Lenders, immediately upon
Borrower's learning thereof, of any bankruptcy proceedings
filed by or against, or the cessation of business or
operations of, any tenant of any of the Real Properties, the
base rent payments of which tenant account for more than 2% of
Borrower's share of consolidated minimum rent in the Real
Properties in the aggregate.
(4) ANNUAL OPERATING BUDGET. As soon as available and
in any event on or prior to December 15 of each fiscal year,
an Annual Operating Budget of Borrower for the following
fiscal year, in such detail and form as Agent may reasonably
request.
7.3 EVENTS OF DEFAULT. Promptly upon Borrower obtaining knowledge: (a)
of any condition or event which constitutes an Event of Default or Potential
Event of Default, or becoming aware that any Lender or Agent has given any
notice with respect to a claimed Event of Default or Potential Event of Default
under this Agreement; (b) that any Person has given any notice to Borrower or
any Subsidiary or taken any other action with respect to a claimed default or
event or condition of the type referred to in SECTION 10.1(e); or (c) or of any
condition or event which has or is reasonably likely to have a Material Adverse
Effect, Borrower shall deliver to Agent and the other Lenders an Officer's
Certificate specifying: (i) the nature and period of existence of any such
claimed default, Event of Default, Potential Event of Default, condition or
event; (ii) the notice given or action taken by such Person in connection
therewith; and (iii) what action Borrower has taken, is taking and proposes to
take with respect thereto.
7.4 LAWSUITS. (a) Promptly upon Borrower's obtaining knowledge of the
institution of, or written threat of, any action, suit, proceeding, governmental
investigation or arbitration against or affecting Borrower or any Subsidiary not
previously disclosed pursuant to SECTION 6.10, which action, suit, proceeding,
governmental investigation or arbitration exposes, or in the case of multiple
actions, suits, proceedings, governmental investigations or arbitrations arising
out of the same general allegations or circumstances which expose, in Borrower's
reasonable judgment, Borrower or any Subsidiary to liability in an amount
aggregating $250,000 or more and is not covered by Borrower's insurance,
Borrower shall give written notice thereof to Agent and the other Lenders and
provide such other information as may be reasonably available to enable each
Lender and Agent and its counsel to evaluate such matters; (b) as soon as
practicable and in any event within thirty (30) days after the end of each
fiscal quarter of Borrower, Borrower shall provide a written quarterly report to
Agent and the other Lenders covering the institution of, or written threat of,
any action, suit, proceeding, governmental investigation or arbitration (not
previously reported) against or affecting Borrower or any Subsidiary or any
Property of Borrower or any Subsidiary not previously disclosed by Borrower to
Agent and the other Lenders, and shall provide such other information at such
time as may be reasonably available to enable each Lender and Agent and its
counsel to evaluate such matters; and (c) in addition to the requirements set
forth in CLAUSES (a) and (b) of this SECTION 7.4, Borrower shall, upon request
of Agent or any Lender, promptly give written notice of the status of any
action, suit, proceeding, governmental investigation or arbitration covered by a
report delivered pursuant to
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CLAUSE (a) or (b) above and provide such other information as may be reasonably
available to it to enable each Lender and Agent and its counsel to evaluate such
matters.
7.5 INSURANCE. As soon as practicable and in any event by January 1 of
each calendar year, Borrower shall deliver to Agent and the other Lenders: (a) a
report in form and substance reasonably satisfactory to Agent and the other
Lenders outlining all insurance coverage maintained as of the date of such
report by Borrower and the Subsidiaries and the duration of such coverage; and
(b) evidence that all premiums with respect to such coverage have been paid when
due.
7.6 ERISA NOTICES. Borrower shall deliver or cause to be delivered to
Agent and the other Lenders, at Borrower's expense, the following information
and notices as soon as reasonably possible, and in any event:
(1) within fifteen (15) Business Days after Borrower or any
ERISA Affiliate knows or has reason to know that a Termination Event
has occurred, a written statement of the chief financial officer of
Borrower describing such Termination Event and the action, if any,
which Borrower or any ERISA Affiliate has taken, is taking or proposes
to take with respect thereto, and when known, any action taken or
threatened by the IRS, DOL or PBGC with respect thereto;
(2) within fifteen (15) Business Days after Borrower knows or
has reason to know that a prohibited transaction (defined in Sections
406 of ERISA and Section 4975 of the Internal Revenue Code) has
occurred, a statement of the chief financial officer of Borrower
describing such transaction and the action which Borrower or any ERISA
Affiliate has taken, is taking or proposes to take with respect
thereto;
(3) within fifteen (15) Business Days after the filing of the
same with the DOL, IRS or PBGC, copies of each annual report (form 5500
series), including Schedule B thereto, filed with respect to each Plan;
(4) within fifteen (15) Business Days after receipt by
Borrower or any ERISA Affiliate of each actuarial report for any Plan
or Multiemployer Plan and each annual report for any Multiemployer
Plan, copies of each such report;
(5) within fifteen (15) Business Days after the filing of the
same with the IRS, a copy of each funding waiver request filed with
respect to any Plan and all communications received by Borrower or any
ERISA Affiliate with respect to such request;
(6) within fifteen (15) Business Days after the occurrence any
material increase in the benefits of any existing Plan or Multiemployer
Plan or the establishment of any new Plan or the commencement of
contributions to any Plan or Multiemployer Plan to which Borrower or
any ERISA Affiliate to which Borrower or any ERISA Affiliate was not
previously contributing, notification of such increase, establishment
or commencement;
(7) within fifteen (15) Business Days after Borrower or any
ERISA Affiliate receives notice of the PBGC's intention to terminate a
Plan or to have a trustee appointed to administer a Plan, copies of
each such notice;
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(8) within fifteen (15) Business Days after Borrower or any
Subsidiary receives notice of any unfavorable determination letter from
the IRS regarding the qualification of a Plan under Section 401(a) of
the Internal Revenue Code, copies of each such letter;
(9) within fifteen (15) Business Days after Borrower or any
ERISA Affiliate receives notice from a Multiemployer Plan regarding the
imposition of withdrawal liability, copies of each such notice;
(10) within fifteen (15) Business Days after Borrower or any
ERISA Affiliate fails to make a required installment or any other
required payment under Section 412 of the Internal Revenue Code on or
before the due date for such installment or payment, a notification of
such failure; and
(11) within fifteen (15) Business Days after Borrower or any
ERISA Affiliate knows or has reason to know: (i) a Multiemployer Plan
has been terminated; (ii) the administrator or plan sponsor of a
Multiemployer Plan intends to terminate a Multiemployer Plan; or (iii)
the PBGC has instituted or will institute proceedings under Section
4042 of ERISA to terminate a Multiemployer Plan, notification of such
termination, intention to terminate, or institution of proceedings.
For purposes of this SECTION 7.6, Borrower and any ERISA Affiliate
shall be deemed to know all facts known by the "Administrator" of any
Plan or Multiemployer Plan of which Borrower or any ERISA Affiliate is
the plan sponsor.
7.7 ENVIRONMENTAL NOTICES. Borrower shall notify Agent and the other
Lenders in writing, promptly upon any representative of Borrower or other
employee of Borrower responsible for the environmental matters at any Property
of Borrower learning thereof, of any of the following (together with any
material documents and correspondence received or sent in connection therewith):
(1) notice or claim to the effect that Borrower or any
Subsidiary is or may be liable to any Person as a result of the Release
or threatened Release of any Hazardous Material into the environment,
if such liability would result in a Material Adverse Effect;
(2) notice that Borrower or any Subsidiary is subject to
investigation by any Governmental Authority evaluating whether any
Remedial Action is needed to respond to the Release or threatened
Release of any Hazardous Material into the environment;
(3) notice that any Property of Borrower or any Subsidiary is
subject to an Environmental Lien if the claim to which such
Environmental Lien relates would result in a Material Adverse Effect;
(4) notice of violation by Borrower or any Subsidiary of any
Environmental, Health or Safety Requirement of Law;
(5) any condition which might reasonably result in a violation
by Borrower or any Subsidiary of any Environmental, Health or Safety
Requirement of Law, which violation would result in a Material Adverse
Effect;
(6) commencement or threat of any judicial or administrative
proceeding alleging a violation by Borrower or any Subsidiary of any
Environmental, Health or Safety Requirement of Law, which would result
in a Material Adverse Effect;
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(7) new or proposed changes to any existing Environmental,
Health or Safety Requirement of Law that could result in a Material
Adverse Effect; or
(8) any proposed acquisition of stock, assets, real estate, or
leasing of Property, or any other action by Borrower or any Subsidiary
that could subject Borrower or any Subsidiary to environmental, health
or safety Liabilities and Costs which could result in a Material
Adverse Effect.
7.8 LABOR MATTERS. Borrower shall notify Agent and the other Lenders in
writing, promptly upon Borrower's learning thereof, of any labor dispute to
which Borrower or any Subsidiary may become a party (including, without
limitation, any strikes, lockouts or other disputes relating to any Property of
such Persons' and other facilities) which could result in a Material Adverse
Effect.
7.9 NOTICES OF ASSET SALES AND/OR ACQUISITIONS. Borrower shall deliver
to Agent and the other Lenders written notice of each of the following upon the
occurrence thereof: (a) a sale, transfer or other disposition of assets, in a
single transaction or series of related transactions, for consideration in
excess of $25,000,000; (b) an acquisition of assets, in a single transaction or
series of related transactions, for consideration in excess of $25,000,000; and
(c) the grant of a Lien with respect to assets, in a single transaction or
series of related transactions, in connection with Indebtedness aggregating an
amount in excess of $25,000,000.
7.10 TENANT NOTIFICATIONS. Borrower shall promptly notify Agent upon
obtaining knowledge of the bankruptcy or cessation of operations of any tenant
to which greater than 2% of Borrower's share of consolidated minimum rent is
attributable.
7.11 NOTIFICATION OF CHANGES TO OTHER CREDIT FACILITIES. Borrower shall
deliver or cause to be delivered to Agent written notice of any amendment,
modification or adjustment of any material terms (other than those related to
pricing and fees) of any Other Credit Facilities or the execution and delivery
of any additional guaranties thereunder by any Subsidiary (such notice to
include the substantive terms of any changes).
7.12 SUPPLEMENTS TO SCHEDULES. Promptly after any of the information or
disclosures provided on any of the Schedules delivered pursuant to this
Agreement becomes outdated or incorrect or requires supplementation in any
material respect, Borrower shall deliver any revised or updated Schedule(s) as
may be necessary or appropriate to update or correct such information or
disclosures; provided that, in the case of SCHEDULES 6.10 and 6.17, the
information on such supplemental Schedule(s) shall not be deemed accepted for
purposes of this Agreement and shall not become part of this Agreement unless
approved by the Required Lenders.
7.13 OTHER REPORTS. Borrower shall deliver or cause to be delivered to
Agent and the other Lenders copies of all financial statements, reports, notices
and other materials, if any, sent or made available generally by Borrower to its
respective Securities holders or filed with the Commission, all press releases
made available generally by Borrower or any Subsidiary to the public concerning
material developments in the business of Borrower or any such Subsidiary and all
notifications received by Borrower or any Subsidiary pursuant to the Securities
Exchange Act and the rules promulgated thereunder.
7.14 OTHER INFORMATION. Promptly upon receiving a request therefor from
Agent, Borrower shall prepare and deliver to Agent and the other Lenders such
other information with respect to either Borrower or any
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Subsidiary, including, without limitation, information and documentation
evidencing the compliance by Borrower with the covenants set forth in SECTION 8
and SECTION 9 hereof, as from time to time may be reasonably requested by Agent.
SECTION 8 AFFIRMATIVE COVENANTS.
Borrower covenants and agrees that so long as any Commitments are
outstanding and thereafter until payment in full of all of the Obligations
(other than indemnities pursuant to SECTION 12.1 not yet due), unless the
Requisite Lenders (except in the case of SECTION 8.12, the Supermajority
Lenders) shall otherwise give prior written consent:
8.1 EXISTENCE. ETC. Borrower shall, and shall cause each Subsidiary to,
at all times maintain its corporate existence or existence as a limited
partnership, limited liability company, corporation, business trust or joint
venture, as applicable, and preserve and keep, or cause to be preserved and
kept, in full force and effect its rights and franchises material to its
businesses, except where the loss or termination of such rights and franchises
is not likely to have a Material Adverse Effect.
8.2 POWERS; CONDUCT OF BUSINESS. Borrower shall remain qualified, and
shall cause each Subsidiary to qualify and remain qualified, to do business and
maintain its good standing in each jurisdiction in which the nature of its
business and the ownership of its Property requires it to be so qualified and in
good standing.
8.3 COMPLIANCE WITH LAWS, ETC. Borrower shall, and shall cause each
Subsidiary to: (a) comply with all Requirements of Law and all restrictive
covenants affecting such Person or the business, Property, assets or operations
of such Person; and (b) obtain and maintain as needed all Permits necessary for
its operations (including, without limitation, the operation of the Real
Properties) and maintain such Permits in good standing except where
noncompliance with either CLAUSE (a) or above is not reasonably likely to have a
Material Adverse Effect; provided, however, that Borrower shall, and shall cause
each Subsidiary to, comply with all Environmental, Health or Safety Requirements
of Law affecting such Person or the business, Property, assets or operations of
such Person.
8.4 PAYMENT OF TAXES AND CLAIMS. Borrower shall pay, and cause each
Subsidiary to pay: (a) all taxes, assessments and other governmental charges
imposed upon it or on any of its Property or assets or in respect of any of its
franchises, licenses, receipts, sales, use, payroll, employment, business,
income or Property before any penalty or interest accrues thereon; and (b) all
Claims (including, without limitation, claims for labor, services, materials and
supplies) for sums which have become due and payable and which by law have or
may become a Lien (other than a Lien permitted by SECTION 9.3 or a Customary
Permitted Lien) for property taxes and assessments not yet due upon any of
Borrower's or any Subsidiary's Property or assets, prior to the time when any
penalty or fine shall be incurred with respect thereto; provided, however, that
no such taxes, assessments, fees and governmental charges referred to in CLAUSE
(a) above or Claims referred to in CLAUSE (b) above need be paid if being
consented in good faith by appropriate proceedings diligently instituted and
conducted and if such reserve or other appropriate provision, if any, as shall
be required in conformity with GAAP shall have been made therefor.
8.5 INSURANCE. Borrower shall maintain for itself and the Subsidiaries,
or shall cause each Subsidiary to maintain in full force and effect the
insurance policies and programs listed on SCHEDULE 6.21 or substantially similar
policies and programs or other policies and programs as are reasonably
acceptable to Agent and
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the Requisite Lenders. All such policies and programs shall be maintained with
insurers reasonably acceptable to Agent and the Requisite Lenders.
8.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. Borrower
shall permit, and cause each Subsidiary to permit, any authorized
representative(s) designated by either Agent or other Lender to visit and
inspect any of the Real Properties, to examine, audit, check and make copies of
their respective financial and accounting records, books, journals, orders,
receipts and any correspondence and other data relating to their respective
businesses or the transactions contemplated hereby (including, without
limitation, in connection with environmental compliance, hazard or liability),
and to discuss their affairs, finances and accounts with their officers and
independent certified public accountants, all with a representative of Borrower
present, upon reasonable notice and at such reasonable times during normal
business hours, as often as may be reasonably requested. Each such visitation
and inspection shall be at such visitor's expense. Borrower shall keep and
maintain, and cause the Subsidiaries to keep and maintain, in all material
respects on its proper books of record and account in which entries in
conformity with GAAP shall be made of all dealings and transactions in relation
to their respective businesses and activities.
8.7 ERISA COMPLIANCE. Borrower shall, and shall cause each Subsidiary
and ERISA Affiliate to, establish, maintain and operate all Plans to comply in
all material respects with the provisions of ERISA, the Internal Revenue Code,
all other applicable laws, and the regulations and interpretations thereunder
and the respective requirements of the governing documents for such Plans.
8.8 MAINTENANCE OF PROPERTY. Borrower shall, and shall cause each
Subsidiary to, maintain or cause to be maintained in all material respects all
of their respective owned and leased Property in good, safe and insurable
condition and repair and in a businesslike manner, and not permit, commit or
suffer any waste or abandonment of any such Property and from time to time shall
make or cause to be made all material repairs, renewal and replacements thereof,
including, without limitation, any capital improvements which may be required to
maintain the same in a businesslike manner; provided, however, that such
Property may be altered or renovated in the ordinary course of business of
Borrower or such applicable Subsidiary. Without any limitation on the foregoing,
Borrower shall maintain the Real Property in a manner such that each Real
Property can be used in the manner and substantially for the purposes such Real
Property is used on the Closing Date, including, without limitation, maintaining
all utilities, access rights, zoning and necessary Permits for such Real
Property.
8.9 COMPANY STATUS. USRPI shall at all times: (a) remain a publicly
traded company listed on the New York Stock Exchange or other national stock
exchange; (b) maintain its status as a REIT under the Internal Revenue Code; and
(c) retain direct or indirect management and control of Borrower.
8.10 OWNERSHIP OF PROPERTY. The ownership of substantially all Property
of the Consolidated Businesses shall be held by Borrower and the Subsidiaries.
8.11 CHANGES TO OTHER CREDIT FACILITIES. In the event Borrower amends,
modifies or otherwise adjusts any material terms (other than those relating to
pricing and fees) of any Other Credit Facilities having a maturity that extends
beyond one calendar year, then upon the request of the Requisite Lenders,
Borrower shall be obligated to make the same or comparable amendment,
modification or adjustment to the terms hereof and/or the other Loan Documents,
as applicable.
8.12 GAS STATION SUBSIDIARIES. Borrower shall not, and shall not permit
any Affiliate to, invest in any gas station Property except through a Gas
Station Subsidiary. In addition, Borrower shall not permit any Gas
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Station Subsidiary to purchase any Property which includes a gas station unless
the following conditions shall have been satisfied:
(1) the Gas Station Subsidiary shall not hold title to any
storage tanks, and the owners thereof shall comply with all applicable
requirements of federal and state laws and regulations, whether or not
such tanks may have been installed prior to 1988, including with
respect to financial assurances requirements;
(2) the owner of any such tank shall insure: (i) that the
tanks and related lines shall be corrosion resistant or protected from
corrosion; (ii) that the tanks have overfill/overspill protection;
(iii) that the tanks have continuous leak protection; (iv) that
inventory controls are in place; and (v) that the tanks comply with all
current federal and state laws;
(3) the owner of any such tank must demonstrate that either:
(i) it has an Investment Grade Credit Rating; (ii) it has purchased an
environmental liability insurance policy with respect to the applicable
tanks in an amount of not less than $1,000,000 per property, or (iii)
either the tanks or property, as applicable, is eligible (and the owner
has taken all required actions to receive benefits) under a state
remediation fund approved by the EPA for the purpose of providing
financial assurance required under Environmental Laws, all as evidenced
by an opinion of counsel from the owner of such tank;
(4) a Phase I or Phase II environmental report shall have been
obtained, which report shall not indicate that there shall have been a
Release at the Property, or, if a Release shall have occurred, such
report shall include either: (i) a statement that the Release does not
exceed state action levels and that no remediation is required; or (ii)
a letter from the applicable governmental agency indicating that all
required clean-up has been completed, or if such clean-up has not been
completed, that: (A) a Person having either: (1) an Investment Grade
Credit Rating; or (2) provided proof of liability insurance coverage
for such obligation with a policy limit of not less than $1,000,000,
has acknowledged responsibility and that a clean-up plan which complies
with Environmental Laws has been approved by Borrower, or such Person
is required to submit such a plan for Borrower's approval within 120
days after acquisition of the Property; (B) Borrower either: (1) shall
have reserved or required a third party to escrow adequate funds; or
(2) has adequate insurance coverage, to complete such clean-up in
accordance with Environmental Laws; or (C) the Release is eligible for
a remediation reimbursement program approved by the EPA for the purpose
of providing financial assurance required under Environmental Laws, all
as evidenced by an opinion of counsel from the seller of the Property;
and
(5) the Gas Station Subsidiary shall have entered into a lease
with respect to the applicable Property with an operator, the
environmental provisions of which lease shall be in substantially the
form attached hereto as EXHIBIT F and made a part hereof.
SECTION 9 NEGATIVE COVENANTS.
Borrower covenants and agrees that it shall comply with the following
covenants so long as any Commitments are outstanding and thereafter until
payment in full of all of the Obligations (other than indemnities pursuant to
SECTION 12.1 not yet due), unless the Requisite Lenders shall otherwise give
prior written consent:
9.1 INDEBTEDNESS. Except as set forth on SCHEDULE 6.9, neither Borrower
nor any Subsidiary shall directly or indirectly create, incur, assume or
otherwise become or remain directly or indirectly liable with respect
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to any Indebtedness, except: (a) Indebtedness represented by leases on
Borrower's or any Subsidiary's Real Property; (b) Indebtedness representing the
deferred purchase price of any Real Property; (c) Nonrecourse Debt with respect
to Nonrecourse Debt Properties; and (d) other Indebtedness, provided that (i)
the incurrence of such Indebtedness shall not cause Borrower to violate any of
the other provisions of this SECTION 9, (ii) this SUBSECTION (d) shall not apply
to any Subsidiary Guarantor, and (iii) any Indebtedness incurred in respect of
derivative liabilities shall be limited to interest rate hedging arrangements.
9.2 SALES OF ASSETS. Neither Borrower nor any Subsidiary shall sell,
assign, transfer, lease, convey or otherwise dispose of any Property, whether
now owned or hereafter acquired, or any income or profits therefrom, or enter
into any agreement to do so which would result in a Material Adverse Effect.
9.3 LIENS. Neither Borrower nor any Subsidiary shall directly or
indirectly create, incur, assume or permit to exist any Lien on or with respect
to any Property, or (to the extent the same constitutes a pledge or other
encumbrance of equity interests in Borrower or the Consolidated Businesses) on
or with respect to any Securities of Borrower, except: (a) Liens with respect to
Capital Leases of Equipment entered into in the ordinary course of business of
Borrower pursuant to which the aggregate Indebtedness under such Capital Leases
does not exceed $250,000 for any Real Property; (b) Customary Permitted Liens;
(c) Liens securing Indebtedness permitted pursuant to SECTION 9.1 hereof; and
(d) Pledges allowed pursuant to the definition of "Nonrecourse Debt".
9.4 INVESTMENTS. Neither Borrower nor any Subsidiary shall directly or
indirectly make or own any Investment except:
(1) Investments in Cash Equivalents;
(2) Subject to the limitations of CLAUSE (e) below,
Investments in any Subsidiary or Affiliate of Borrower; provided,
however, neither Borrower nor any Subsidiary shall make any further
Investments on or after the date of this Agreement in any Subsidiary
Guarantor;
(3) Investments in the form of advances to employees in the
ordinary course of business; provided that the aggregate principal
amount of all such loans at any time outstanding shall not exceed
$250,000;
(4) Investments received in connection with the bankruptcy or
reorganization of suppliers and lessees and in settlement of delinquent
obligations of, and other disputes with, lessees and suppliers arising
in the ordinary course of business;
(5) Investments: (i) in any individual Real Property which do
not exceed three percent (3%) the Capitalization Value after giving
effect to such Investments of Borrower; or (ii) in a single Person
owning a Property, or a portfolio of Properties, which do not exceed
ten percent (10%) of the Capitalization Value after giving effect to
such Investments of Borrower, it being understood that no Investment in
any individual Person will be permitted if Borrower's allocable share
of the Investment of such Person in any individual Property would
exceed the limitation described in CLAUSE (i) hereinabove;
(6) Indebtedness secured by mortgages on real property;
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(7) Investments in loans to tenants with respect to tenant
improvements at any Real Property of Borrower or any Subsidiary;
(8) Investments in common stock and other securities traded on
a national securities exchange in an aggregate amount not to exceed
$10,000,000, as well as in limited partner interests in partnerships
that are not publicly traded, in an aggregate amount not to exceed
$10,000,000, unless, in either case Borrower has voting control of the
applicable Person, in which event the aggregate amount shall be
$35,000,000;
(9) Investments in the securities of a Mortgage Subsidiary,
subject to the limitations set forth in SECTION 9.12(j);
(10) Investments in the unrated, subordinated Indebtedness of
a securitized trust of which a Subsidiary is an originator; provided,
however, any such Investment shall not exceed in the aggregate at any
time five percent (5%) of Capitalization Value;
(11) Investments in the securities of a Gas Station
Subsidiary; and
(12) Investments in the securities of a Sale-Leaseback
Subsidiary, subject to the limitations set forth in SECTION 9.12(j).
9.5 CONDUCT OF BUSINESS. Neither Borrower nor any Subsidiary shall
engage in any business, enterprise or activity other than: (a) the businesses of
acquiring, developing, re-developing and managing predominantly restaurant and
convenience store Real Properties and portfolios of like Real Properties; and
(b) any business or activities which are substantially similar, related or
incidental thereto, including making mortgage loans secured by such Real
Properties but only to the extent that the same is otherwise permitted
hereunder; provided, however, that with respect to the conduct of its business,
Borrower shall not permit (measured on an undepreciated book value basis): (i)
the non-restaurant Real Properties of Borrower and its Subsidiaries (exclusive
of Nonrecourse Debt Properties) to exceed forty percent (40%) of all Real
Properties of Borrower and its Subsidiaries, and (ii) the combined
non-restaurant and non-convenience store Real Properties of Borrower and its
Subsidiaries (exclusive of Nonrecourse Debt Properties) to exceed ten percent
(10%) of all Real Properties of Borrower and its Subsidiaries.
9.6 TRANSACTIONS WITH PARTNERS AND AFFILIATES. Neither Borrower nor any
Subsidiary shall directly or indirectly enter into or permit to exist any
transaction (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with any holder or
holders of more than five percent (5%) of any class of equity Securities of
Borrower, or with any Affiliate of Borrower which is not a Subsidiary, on terms
that are determined by the board of directors of General Partner to be less
favorable to Borrower or any Subsidiary, as applicable, than those that might be
obtained in an arm's length transaction at the time from Persons who are not
such a holder or Affiliate. Nothing contained in this SECTION 9.6 shall
prohibit: (a) increases in compensation and benefits for officers ad employees
of Borrower or any Subsidiary which are customary in the industry or consistent
with the past business practice of Borrower or such Subsidiary; provided, that
no Event of Default or Potential Event of Default has occurred and is
continuing; (b) payment of customary partners' indemnities; or (c) performance
of any obligations arising under the Loan Documents.
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9.7 RESTRICTION ON FUNDAMENTAL CHANGES. Neither Borrower nor any
Subsidiary shall enter into any merger or consolidation, or liquidate, wind-up
or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell,
transfer or otherwise dispose of, in one transaction or series of transactions,
all or substantially all of Borrower's or any such Subsidiary's business or
Property, whether now or hereafter acquired, except in connection with issuance,
transfer, conversion or repurchase of limited partnership interests in Borrower.
Notwithstanding the foregoing, Borrower shall be permitted to merge with another
Person so long as Borrower is the surviving Person following such merger. In
addition, any Subsidiary may merge with another Subsidiary.
9.8 MARGIN REGULATIONS; SECURITIES LAWS. Neither Borrower nor any
Subsidiary, shall use all or any portion of the proceeds of any credit extended
under this Agreement to purchase or carry Margin Stock, except as provided in
SECTION 9.4 hereof.
9.9 ERISA. Borrower shall not and shall not permit any Subsidiary or
ERISA Affiliates to:
(1) engage in any prohibited transaction described in Sections
406 of ERISA or 4975 of the Internal Revenue Code for which a statutory
or class exemption is not available or a private exemption has not been
previously obtained from the DOL;
(2) permit to exist any accumulated funding deficiency (as
defined in Sections 302 of ERISA and 412 of the Internal Revenue Code),
with respect to any Plan, whether or not waived;
(3) fail to pay timely required contributions or annual
installments due with respect to any waived funding deficiency to any
Plan;
(4) terminate any Plan which would result in any liability of
Borrower or any ERISA Affiliate under Title IV of ERISA;
(5) fail to make any contribution or payment to any
Multiemployer Plan which Borrower or any ERISA Affiliate may be
required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto;
(6) fail to pay any required installment or any other payment
required under Section 412 of the Internal Revenue Code on or before
the due date for such installment or other payment; or
(7) amend a Plan resulting in an increase in current liability
for the plan year such that Borrower or any ERISA Affiliate is required
to provide security to such Plan under Section 401(a)(29) of the
Internal Revenue Code.
9.10 ORGANIZATIONAL DOCUMENTS. Borrower shall not, and shall not cause
or permit any Subsidiary to, amend, modify or otherwise change any of the terms
or provisions in any of their respective Organizational Documents as in effect
on the Closing Date, except amendments to effect: (a) a change of name of
Borrower or any such Subsidiary; provided that Borrower shall have provided
Agent with sixty (60) days' prior written notice of any such name change; or (b)
changes that would not affect such Organizational Documents in any material
manner.
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9.11 FISCAL YEAR. Unless required by applicable law, neither Borrower
nor any Subsidiary shall change its Fiscal Year for accounting or tax purposes
from a period consisting of the 12-month period ending on December 31 of each
calendar year.
9.12 OTHER FINANCIAL COVENANTS.
(1) MINIMUM COMBINED EQUITY VALUE. At no time shall the
Combined Equity Value be less than $200,000,000.
(2) MAXIMUM TOTAL ADJUSTED OUTSTANDING INDEBTEDNESS. Total
Adjusted Outstanding Indebtedness shall not exceed 60% of
Capitalization Value.
(3) MAXIMUM SECURED INDEBTEDNESS. So long as Total Adjusted
Outstanding Indebtedness is less than 50% of Capitalization Value, then
Secured Indebtedness shall not exceed at any time 15% of Capitalization
Value. In the event Total Adjusted Outstanding Indebtedness is equal to
or greater than 50% of Capitalization Value, then Secured Indebtedness
shall not exceed at any time 12.5% of Capitalization Value; provided
that if Total Adjusted Outstanding Indebtedness increases to 50% or
greater of Capitalization Value while Secured Indebtedness is greater
than 12.5%, then Secured Indebtedness shall not exceed the existing
percentage of Capitalization Value at the time of such increase, but in
no event shall such percentage exceed 15%.
(4) CONSOLIDATED INTEREST COVERAGE RATIO. As of the last day
of each fiscal quarter for the fiscal quarter then ended, the ratio of:
(i) Combined EBITDA; to (ii) Combined Interest Expense, shall not be
less than 2.25 to 1.00.
(5) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. As of the last
day of each fiscal quarter for the fiscal quarter then ended, the ratio
of: (i) Combined EBITDA (which, for purposes of this CLAUSE (e) shall
be deemed to add back payments of base rent (but not percentage rent,
additional rent or other sums which may be due) under any ground lease
or Capital Lease of Borrower or any of its Consolidated Businesses for
such period that has been included in the calculation of Fixed Charges
Expense); to (ii) Fixed Charges Expense, shall not be less than 1.75 to
1.00.
(6) MINIMUM DEBT YIELD. As of the last day of each fiscal
quarter for the fiscal quarter then ended, annualized, the ratio
(expressed as a percentage) of: (i) Combined EBITDA; to (ii) Total
Adjusted Outstanding Indebtedness shall not be less than 16%.
(7) UNENCUMBERED INTEREST COVERAGE RATIO. As of the last day
of each fiscal quarter for the fiscal quarter then ended, the ratio of:
(i) Unencumbered Combined EBITDA; to (ii) Unsecured Interest Expense,
shall not be less than 1.75 to 1.00.
(8) MINIMUM UNSECURED DEBT YIELD. As of the last day of each
fiscal quarter for the fiscal quarter then ended, annualized, the ratio
of: (i) Unencumbered Combined EBITDA for such period; to (ii) Total
Unsecured Outstanding Indebtedness during such period shall not be less
than 16%.
(9) MAXIMUM CONSTRUCTION ASSET COST. Construction Asset Cost
shall not exceed at any time 5% of Capitalization Value.
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(10) BOOK VALUE OF MORTGAGE SUBSIDIARIES AND SALE-LEASEBACK
SUBSIDIARIES. The aggregate book value of each of the Mortgage
Subsidiaries' and the Sale-Leaseback Subsidiaries' Property, securities
and investments, taken together, before depreciation, and less an
amount equal to the Nonrecourse Debt of the Mortgage Subsidiaries and
the Sale-Leaseback Subsidiaries, shall not exceed 15% of the
Capitalization Value.
9.13 PRO FORMA ADJUSTMENTS.
(1) In connection with an acquisition of a Property, or a
portfolio of Properties, by any of the Consolidated Businesses or any
Minority Holding (other than a Limited Minority Holding) (whether such
acquisition is direct or through the acquisition of a Person which owns
such Property), the financial covenants contained in this Agreement, as
well as the definition of "Leverage Ratio", shall be calculated on a
pro forma basis (with respect to the pro rata share of Borrower in the
case of an acquisition by a Minority Holding) to be agreed upon as to
each such acquisition by Agent and Borrower, which pro forma
calculation shall be effective until the last day of the fourth fiscal
quarter following such acquisition (or such earlier test period, as
applicable), at which time actual performance shall be utilized for
such calculations. In addition, until such time as any such Property or
portfolio of Properties shall have been owned by Borrower or any
Consolidated Business or Minority Holding (other than a Limited
Minority Holding) for one fiscal quarter, the Capitalization Value with
respect thereto shall be deemed to be equal to either the acquisition
cost thereof if such Property shall be fully leased, or if such
Property shall not be fully leased, $0. Whether or not any such
Property shall be fully leased, the entire amount of Indebtedness
incurred in connection therewith shall be included in the definition of
"Indebtedness" for purposes of this SECTION 9.13.
(2) In addition, notwithstanding anything contained herein to
the contrary, the financial covenants contained in this Agreement shall
be calculated without reference to, or inclusion of, any assets or
liabilities of any Mortgage Subsidiary.
(3) In addition, notwithstanding anything contained herein to
the contrary, the financial covenants contained in this Agreement shall
be calculated without reference to, or inclusion of, any assets or
liabilities of any Sale-Leaseback Subsidiary.
SECTION 10 EVENTS OF DEFAULT.
10.1 EVENTS OF DEFAULT. Each of the following occurrences shall
constitute an Event of Default under this Agreement:
(1) FAILURE TO MAKE PAYMENTS WHEN DUE. Borrower shall fail:
(i) to pay, when due, any principal payment of the Obligations; or (ii)
to pay, within three (3) Business Days of the due date thereof without
notice, any interest payment on the Obligations.
(2) BREACH OF CERTAIN COVENANTS. Borrower shall fail duly and
punctually to perform or observe any agreement, covenant or obligation
binding on such Person under, SECTIONS 8.1, 8.3, 8.4, 8.5, 8.6, 8.9,
8.12 or SECTION 9.
(3) BREACH OF REPRESENTATION OR WARRANTY. Any representation
and warranty made by Borrower to Agent or any other Lender herein or by
Borrower or any Subsidiary in any of the other Loan
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Documents or in any statement or certificate at any time given by any
such Person pursuant to any of the Loan Documents shall be false or
misleading in any material respect on the date as of which made (unless
any such representation and warranty is already qualified by a
materiality concept, in which case such representation and warranty
shall not be false or misleading in any respect).
(4) OTHER DEFAULTS. Except as set forth in the next sentence,
Borrower shall default in the performance of or compliance with any
term contained in this Agreement (other than as identified in
PARAGRAPHS (a), (b) or (c) of this SECTION 10.1), or any default or
event of default shall occur under any of the other Loan Documents, and
such default or event of default shall continue for ten (10) days after
receipt of written notice from Agent thereof.
(5) OTHER CREDIT FACILITIES CROSS DEFAULTS. Any default, event
of default, or event which with the giving of notice or lapse of time,
or both, would constitute an event of default shall occur under any of
the Other Credit Facilities.
(6) ACCELERATION OF OTHER INDEBTEDNESS. Any breach, default or
event of default shall occur, or any other condition shall exist under
any instrument, agreement or indenture pertaining to any Indebtedness
(other than the Obligations and the Other Credit Facilities) of
Borrower or any Subsidiary aggregating $10,000,000 or more, and the
effect thereof is to cause an acceleration, mandatory redemption or
other required repurchase of such Indebtedness, or permit the holder(s)
of such Indebtedness to accelerate the maturity of any such
Indebtedness or require a redemption or other repurchase of such
Indebtedness; or any such Indebtedness shall be otherwise declared to
be due and payable (by acceleration or otherwise) or required to be
prepaid, redeemed or otherwise repurchased by Borrower or any
Subsidiary (other than by a regularly scheduled required prior to the
stated maturity thereof).
(7) INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(1) An involuntary case shall be commenced against
Borrower, or any Subsidiary to which more than $25,000,000 of
the Capitalization Value, in the aggregate, is attributable,
and the petition shall not be dismissed, stayed, bonded or
discharged within sixty (60) days after commencement of the
case; or a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of Borrower or
any Subsidiary in an involuntary case, under any applicable
bankruptcy, insolvency or other similar law now or hereinafter
in effect; or any other similar relief shall be granted under
any applicable federal, state, local or foreign law; or the
board of directors of General Partner or Limited Partners of
Borrower or the board of directors or partners of any
Subsidiary (or any committee thereof) adopts any resolution or
otherwise authorizes any action to approve any of the
foregoing.
(2) A decree or order of a court having jurisdiction
in the premises for the appointment of a receiver, liquidator,
sequestration, trustee, custodian or other officer having
similar powers over Borrower, or any Subsidiary to which more
than $25,000,000 of the Capitalization Value, in the
aggregate, is attributable, or over all or a substantial part
of the Property of Borrower or any such Subsidiary shall be
entered; or an interim receiver, trustee or other custodian of
Borrower or any such Subsidiary or of all or a substantial
part of the Property of Borrower or any such Subsidiary shall
be appointed or a warrant of attachment, execution or similar
process against any substantial part of the Property of
Borrower or any such Subsidiary shall be issued and any such
event shall not be stayed, dismissed, bonded or
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discharged within sixty (60) days after entry, appointment or
issuance; or the respective board of directors of any of
Borrower or Limited Partners of Borrower or the board of
directors or partners of any Subsidiary (or any committee
thereof) adopts any resolution or otherwise authorizes any
action to approve any of the foregoing.
(8) VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC. Either
Borrower, or any Subsidiary to which more than $25,000,000 of the
Capitalization Value, in the aggregate, is attributable, shall commence
a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or shall consent to the entry
of an order for relief in an involuntary case, or to the conversion of
an involuntary case to a voluntary case, under any such law, or shall
consent to the appointment of or taking possession by a receiver,
trustee or other custodian for all or a substantial part of its
Property; or any of Borrower or any of such Subsidiary shall make any
assignment for the benefit of creditors or shall be unable or fail, or
admit in writing its inability, to pay its debts as such debts become
due.
(9) JUDGMENTS AND UNPERMITTED LIENS.
(1) Any money judgment (other than a money judgment
covered by insurance as to which the insurance company has
acknowledged coverage), writ or warrant of attachment, or
similar process against Borrower or any Subsidiary or any of
its respective assets involving in any case an amount in
excess of $10,000,000 (other than with respect to Claims
arising out of non-recourse Indebtedness) is entered and shall
remain undischarged, unvacated, unbonded or unstayed for a
period of sixty (60) days or in any event later than five (5)
days prior to the date of any proposed sale thereunder;
provided, however, if any such judgment, writ or warrant of
attachment or similar process is in excess of $20,000,000
(other than with respect to Claims arising out of non-recourse
Indebtedness), the entry thereof shall immediately constitute
an Event of Default hereunder.
(2) A federal, state, local or foreign tax Lien is
filed against Borrower which is not discharged of record,
bonded over or otherwise secured to the satisfaction of Agent
within thirty (30) days after the filing thereof or the date
upon which Agent receives actual knowledge of the filing
thereof for an amount which, either separately or when
aggregated with the amount of any judgments described in
CLAUSE (i) above and/or the amount of the Environmental Lien
Claims described in CLAUSE (iii) below, equals or exceeds
$10,000,000.
(3) An Environmental Lien is filed against any Real
Property with respect to Claims in an amount which, either
separately or when aggregated with the amount of any judgments
described in CLAUSE (i) above and/or the amount of the tax
Liens described in CLAUSE (ii) above, equals or exceeds
$10,000,000.
(10) DISSOLUTION. Any order, judgment or decree shall be
entered against Borrower decreeing its involuntary dissolution or split
up; or Borrower shall otherwise dissolve or cease to exist except as
specifically permitted by this Agreement.
(11) LOAN DOCUMENTS. At any time, for any reason, any Loan
Document ceases to be in full force and effect or Borrower or any
Guarantor seeks to repudiate its obligations thereunder.
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(12) ERISA TERMINATION EVENT. Any ERISA Termination Event
occurs which Agent believes could subject Borrower or any ERISA
Affiliate to liability in of $100,000.
(13) WAIVER APPLICATION. The plan administrator of any Plan
applies under Section 412(d) of the Code for a waiver of the minimum
funding standards of Section 412(a) of the Internal Revenue Code and
the Requisite Lenders believe that the substantial business hardship
upon which the application for the waiver is based could subject either
Borrower or any ERISA Affiliate to liability in excess of $100,000.
(14) MATERIAL ADVERSE EFFECT. An event shall occur which has a
Material Adverse Effect.
(15) CERTAIN DEFAULTS PERTAINING TO THE GENERAL PARTNER. The
General Partner shall fail to: (i) continue as a general partner of
Borrower; (ii) comply with all Requirements of Law applicable to it and
its businesses and Properties, in each case where the failure to so
comply individually or in the aggregate will have or is reasonably
likely to have a Material Adverse Effect; or (iii) file all tax returns
and reports required to be filed by it with any Governmental Authority
as and when required to be filed or to pay any taxes, assessments, fees
or other governmental charges upon it or its Property, assets,
receipts, sales, use, payroll, employment, licenses, income, or
franchises which are sworn in such returns, reports or similar
statements to be due and payable as and when due and payable, except
for taxes, assessments, fees and other governmental charges: (A) that
are being contested by General Partner in good faith by an appropriate
proceeding diligently pursued; (B) for which adequate reserves have
been made on its books and records; and (C) the amounts the non-payment
of which would not, individually or in the aggregate, result in a
Material Adverse Effect.
(16) CERTAIN DEFAULTS PERTAINING TO USRPI. USRPI shall fail
to: (i) maintain its status as a REIT for federal income tax purposes;
or (ii) remain listed on the New York Stock Exchange or other national
stock exchange.
(17) MERGER OR LIQUIDATION OF BORROWER. General Partner or
Borrower shall merge or liquidate with or into any other Person and, as
a result thereof and after giving effect thereto: (i) Borrower is not
the surviving Person; or (ii) such merger or liquidation would effect
an acquisition of or Investment in any Person not otherwise permitted
under the terms of this Agreement.
An Event of Default shall be deemed "continuing" until cured or waived
in writing in accordance with SECTION 12.12.
10.2 RIGHTS AND REMEDIES.
(1) ACCELERATION AND TERMINATION. Upon the occurrence of any
Event of Default described in SECTIONS 10.1(g) or 10.1(h), the
Available Commitment shall automatically and immediately terminate and
the unpaid principal amount of, and any and all accrued interest on,
the Obligations and all accrued fees shall automatically become
immediately due and payable, without presentment, demand, or protest or
other requirements of any kind (including, without limitation,
valuation and appraisement, diligence, presentment, notice of intent to
demand or accelerate and of acceleration), all of which are hereby
expressly waived by Borrower; and upon the occurrence and during the
continuance of any other Event of Default, Agent shall at the request,
or may with the consent, of the Requisite Lenders, by written notice to
Borrower: (i) declare that the Available Commitment is terminated,
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whereupon the obligation of each Lender to make any Loan hereunder
shall immediately terminate, and/or (ii) declare the unpaid principal
amount of and any and all accrued and unpaid interest on the
Obligations to be, and the same shall thereupon be, immediately due and
payable, without presentment, demand, or protest or other requirements
of any kind (including, without limitation, valuation and appraisement,
diligence, presentment, notice of intent to demand or accelerate and of
acceleration), all of which are hereby expressly waived by Borrower.
(2) RESCISSION. If at any time after termination of the
Available Commitment and/or acceleration of the maturity of the Loans,
Borrower shall pay all arrears of interest and all payments on account
of principal of the Loans which shall have become due otherwise than by
acceleration (with interest on principal and, to the extent permitted
by law, on overdue interest, at the rates specified in this Agreement)
and all Events of Default and Potential Events of Default (other than
nonpayment of principal of and accrued interest on the Loans due and
payable solely by virtue of acceleration) shall be remedied or waived
pursuant to SECTION 12.11, then upon the written consent of the
Supermajority Lenders and written notice to Borrower, the termination
of the Available Commitment and/or the acceleration and their
consequences may be rescinded and annulled; but such action shall not
affect any subsequent Event of Default or Potential Event of Default or
impair any right or remedy consequent thereon. The provisions of the
preceding sentence are intended merely to bind the Lenders to a
decision which may be made at the election of the Requisite Lenders;
they are not intended to benefit Borrower and do not give Borrower the
right to require the Lenders to rescind or annul any acceleration
hereunder, even if the conditions set forth herein are met.
(3) ENFORCEMENT. Borrower acknowledges that in the event
Borrower or any Subsidiary fails to perform, observe or discharge any
of their respective obligations or liabilities under this Agreement or
any other Loan Document, any remedy of law may prove to be inadequate
relief to Agent and the other Lenders; therefore, Borrower agrees that
Agent and the other Lenders shall be entitled to temporary and
permanent injunctive relief in any such case without the necessity of
proving actual damages.
SECTION 11 AGENT.
11.1 APPOINTMENT AND AUTHORIZATION. Lenders hereby appoint CLNY to act
as Agent as herein specified, and each Lender hereby irrevocably appoints and
authorizes Agent to take such action on its behalf and to exercise such power
under this Agreement and the other Loan Documents as are delegated to Agent by
the terms hereof or thereof, together with such powers as are reasonably
incidental thereto. Neither Agent nor any of its respective directors, officers
or employees shall be liable for any action taken or omitted to be taken by it
or them under or in connection with the Agreement or the Loan Documents, except
for its or their own gross negligence or willful misconduct. Agent may perform
any of its duties under the Agreement and Loan Documents by or through its
agents or employees.
11.2 RELIANCE ON AGENT. Borrower shall be entitled to rely upon, and to
act or refrain from acting on the basis of, any notice, statement, certificate,
waiver or other document or instrument delivered by Agent to Borrower so long as
Agent is purporting to act in its capacity as Agent pursuant to this Agreement,
and Borrower shall not be responsible or liable to any Lender (or to any
Participant or to any Assignee), or as a result of any action or failure to act
(including actions or omissions which would otherwise constitute defaults
hereunder) which is based upon such reliance upon Agent. Borrower shall be
entitled to treat Agent as the properly authorized Agent pursuant to this
Agreement until Borrower shall have received notice of resignation, and
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Borrower shall not be obligated to recognize any successor Agent until Borrower
shall have received written notification satisfactory to it of the appointment
of such successor Agent.
11.3 AGENT IN ITS INDIVIDUAL CAPACITY. With respect to the Note issued
to Agent, Agent shall have the same rights and powers under this Agreement as
any other Lender and may exercise the same as though it were not Agent. Agent
and its Affiliates may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with, Borrower, or
any direct or indirect Affiliates of Borrower, and any such Person that may do
business with Borrower, or any direct or indirect Affiliates of Borrower, all as
if Agent were not Agent hereunder and without any duty to account therefor to
the other Lenders.
11.4 NOTE HOLDERS. Agent may treat the payee of any Note as the holder
thereof until written notice of transfer shall have been filed in the manner
provided in SECTION 12.9(c), signed by such payee, and in form satisfactory to
Agent.
11.5 CONSULTATION WITH PROFESSIONALS. Each Lender agrees that Agent may
consult with legal counsel, accountants and other professionals selected by
Agent and shall not be liable for any action taken or suffered in good faith by
it in accordance with the advice of such Persons.
11.6 DOCUMENTS. Agent shall not be under a duty to examine or pass upon
the validity, effectiveness, enforceability, genuineness or value of any of the
Loan Documents or any other instrument or document furnished pursuant thereto,
and Agent shall be entitled to assume that the same are valid, effective,
enforceable and genuine and what they purport to be.
11.7 RESIGNATION OF AGENT AND SUCCESSOR AGENTS; REMOVAL. Subject to the
appointment and acceptance of a successor Agent as provided below, Agent may
resign at any time by giving written notice thereof to Lenders and Borrower or
may be removed with or without cause by the Requisite Lenders. Agent shall
continue to serve as Agent until such appointment and acceptance by a successor
Agent. If Agent resigns or is removed, then Borrower and the Requisite Lenders
shall work diligently toward the appointment of a successor Agent, and if no
successor Agent shall have been so appointed and shall have accepted such
appointment within thirty (30) days after the retiring Agent gives notice of
resignation or is removed, then the Requisite Lenders shall, on behalf of
Lenders, appoint a successor Agent; provided, however, that if no Event of
Default or Potential Event of Default exists, the appointment of a successor
Agent shall require the prior approval of Borrower, which approval shall not be
unreasonably withheld. If Agent resigns or is removed and no successor Agent(s)
shall have been appointed and shall have accepted such appointment as aforesaid
within sixty (60) days after the retiring Agent gives notice of resignation or
is removed, then the retiring Agent shall, on behalf of Lenders, appoint a
successor Agent, in which case no prior approval of Borrower shall be required.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring Agent and the retiring
Agent shall be discharged from any further duties and obligations arising
thereafter hereunder. After any retiring Agent's resignation or removal as
Agent, the provisions of this SECTION 11.7 shall continue in effect for its
benefit in respect to any actions taken or omitted to be taken by it while it
was acting as Agent.
11.8 RESPONSIBILITY OF AGENT. It is expressly understood and agreed
that the obligations of Agent under the Loan Documents are only those expressly
set forth in the Loan Documents and that Agent shall be entitled to assume that
no Event of Default has occurred and is continuing, unless Agent has actual
knowledge of such fact or has received notice from a Lender that such Lender
considers that an Event of Default or such event has occurred and is continuing
and specifying the nature thereof. As used herein "ACTUAL KNOWLEDGE"
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<PAGE> 61
means the actual knowledge of the account officers at Agent who have the account
responsibility for Borrower. Each Lender recognizes and agrees that, for
purposes of this Agreement, Agent shall not be required to determine
independently whether the conditions described in SECTION 5 have been satisfied
and, in disbursing funds to Borrower, may rely fully upon statements contained
in the relevant requests by Borrower. Agent shall not incur any liability under
or in respect of this Agreement or the other Loan Documents by acting upon any
notice, consent, certificate, warranty or other paper or instrument believed by
it to be genuine or authentic or to be signed by the proper parties, or with
respect to anything which it may do or refrain from doing in the reasonable
exercise of its judgment, or which may seem to it to be necessary or desirable
in the premises. Furthermore, Agent shall be fully justified by acting in good
faith upon any notice, consent, certificate or other instrument or writing
(which may be by telegram, telecopy, cable or telex) believed by Agent to be
genuine and signed or sent by a Lender.
The relationship between Agent and each Lender is only that of agent
and principal and has no fiduciary aspects, and Agent's duties hereunder are
acknowledged to be only ministerial and not involving the exercise of discretion
on its part. Nothing in this Agreement or elsewhere contained shall be construed
to impose on Agent any duties or responsibilities other than those for which
express provision is herein made. In performing its duties and functions
hereunder, Agent does not assume and shall not be deemed to have assumed, and
hereby expressly disclaims, any obligation or responsibility toward or any
relationship of agencies or trusts with or for, Borrower. As to any matters not
expressly provided for in this Agreement (including without limitations,
enforcement or collection of the Notes), Agent shall not be required to exercise
any discretion or take any action, but shall be required to act or to refrain
from acting (and shall be fully protected in so acting or from refraining from
acting) upon the instruction of the Requisite Lenders and such instructions
shall be binding upon all Lenders and all holders of the Notes; provided,
however, that Agent shall not be required to take any action which exposes such
Agent to personal liability or which is contrary to this Agreement or applicable
law.
11.9 ADMINISTRATION OF AGREEMENT. Agent shall carry out its
administrative duties to Lenders under this Agreement in accordance with the
terms of this SECTION 11.9 and as otherwise required by applicable law. Agent
shall not, without the prior written consent of each Lender agree to the
modification or waiver of any of the terms of this Agreement, the Notes or any
Loan Document, consent to any action or failure to act by Borrower, or exercise
any rights in respect of the Loans or under this Agreement, the Notes or any
other Loan Documents, if the agreement, consent or exercise of rights would: (a)
reduce or increase the amount or alter the term of the Commitment of such
Lender, or alter the provisions relating to any fees (or any other payments)
payable to such Lender; (b) extend the time for payment for the principal or
interest on any Notes, or reduce the principal amount of the Notes (except as a
result of the application of payments or prepayments), or reduce the rate of
interest borne by any Notes, or otherwise affect the terms of payment of the
principal of or any interest on any Notes; (c) change the percentages specified
in the definition of Requisite Lenders or Supermajority Lenders herein; or (d)
amend the terms of this SECTION 11.9. Agent shall not, without the prior written
consent of the Requisite Lenders (or, if expressly provided elsewhere in this
Agreement, the Supermajority Lenders), agree to the modification or waiver of
any of the other terms of this Agreement, the Notes or any Loan Documents or
consent to any action or failure to act by Borrower or exercise any rights in
respect of the Loans or under this Agreement, the Notes or any of the other Loan
Documents, unless such consents, modifications or waivers are of an
administrative nature. Further, upon the occurrence of an Event of Default under
this Agreement or any other Loan Document, Agent will promptly consult with
Lenders, and once the Requisite Lenders or the Supermajority Lenders, as the
case may be, have agreed in writing to a course of action, Agent will promptly
implement such action.
If Agent shall request the consent of any Lender to any agreement,
consent or exercise of rights covered by this Agreement, and not receive such
consent or denial thereof in writing within ten (10) Business Days of the
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<PAGE> 62
making of such request by Agent, as the case may be, such Lender shall be deemed
to have given its consent to the request.
11.10 NOTICE OF EVENT OF DEFAULT. In the event that Agent shall have
acquired actual knowledge of any Event of Default or Potential Event of Default,
Agent shall promptly give notice thereof to each Lender. In the event that any
Lender shall have acquired actual knowledge of any Event of Default or Potential
Event of Default, such Lender shall promptly give notice thereof to Agent.
11.11 INDEPENDENT INVESTIGATION. Each Lender represents and warrants to
Agent that it has made its own independent investigation and assessment of the
financial condition and affairs of Borrower and Partners in connection with the
making and continuation of its participation under this Agreement and has not
relied exclusively on any information provided to such Lender by Agent in
connection herewith or therewith, and each Lender represents, warrants and
undertakes to Agent that it shall continue to make its own independent appraisal
of the credit-worthiness of Borrower, while its Commitment is in force.
11.12 SHARING OF OFFSETS. Each Lender and Agent each agrees that if it
shall, through the exercise of any right of counterclaim, offset, banker's lien
or otherwise, receive payment of a portion of the aggregate amount of principal
and interest due with respect to such Lender's Note or with respect to the
Obligations to such Lender hereunder which constitutes a greater proportion of
the aggregate amount of principal, interest and fees then due to such Lender
hereunder or under its Note than the proportion received by any other Lender in
respect of the aggregate amount of principal, interest and fees due with respect
to such other Lender's Note or the Obligations to such Lender under this
Agreement, then such Lender shall purchase participations in the Notes and under
this Agreement held by such other Lenders so that all such recoveries of
principal and interest with respect to this Agreement, the Notes and the
Obligations thereunder held by Lenders shall be pro rata according to each
Lender's Commitment (determined as of the date hereof and regardless of any
change in any Lender's Commitment caused by such Lender's receipt of a
proportionately greater or lesser payment hereunder).
11.13 SHARING OF PAYMENTS. To the extent permitted by applicable law,
each Lender and Agent, in its capacity as a Lender, agrees that if it shall
receive or be entitled to receive payment of a portion of the aggregate amount
of principal, interest and fees due with respect to its Note or with respect to
the Obligations to it under this Agreement which constitutes a greater
proportion of the aggregate amount of principal, interest and fees then due to
such Lender under this Agreement or its Note than the proportion received by any
other Lender in respect of the aggregate amount of principal, interest and fees
due with respect to any other Lender's Note or the Obligations to such Lender
under this Agreement, then such Lender or Agent, in its capacity as a Lender, as
the case may be, shall purchase participations in the Notes and under this
Agreement held by such other Lenders so that all such recoveries of principal,
interest and fees with respect to this Agreement, the Notes and the Obligations
thereunder held by Lenders shall be pro rata according to each Lender's
Commitment (determined as of the date hereof and regardless of any change in any
Lender's Commitment caused by such Lender's receipt of a proportionately greater
or lesser payment hereunder).
11.14 REPURCHASE. If for any reason any Lender shall fail or refuse to
abide by its obligations (a "LENDER DEFAULT") hereunder, and such Lender fails
to cure such Lender Default within five (5) Business Days of its occurrence,
then, in addition to the rights and remedies that may be available to Agent and
Lenders at law or in equity, such Lender's right to participate in the
administration of the Loans, and this Agreement, shall be suspended during the
pendency of such failure or refusal. Agent shall have the right, but not the
obligation, in its sole discretion, to acquire at par all of such Lender's
Commitment, including its Pro Rata Share in the outstanding principal balance of
the Loans and all fees which have accrued with respect thereto under this
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<PAGE> 63
Agreement. In the event that Agent does not exercise its right to so acquire all
of such Lender's interests, then Agent and each Lender that is not in Lender
Default (a "CURRENT PARTY") shall then, thereupon, have the right, but not the
obligation, in its sole discretion to acquire at par (or if more than one
Current Party exercises such right, each Current Party shall have the right to
acquire, pro rata) such Lender's Commitment, including its Pro Rata Share in the
outstanding principal balance of the Loans and all fees which have accrued with
respect thereto under this Agreement.
11.15 INDEMNIFICATION. Lenders agree to indemnify Agent (to the extent
not reimbursed by Borrower), ratably according to their Pro Rata Share, from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses, or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against Agent
(acting in its capacity as Agent) in any way relating to or arising out of this
Agreement or the other Loan Documents or any action taken or omitted by Agent
under this Agreement or the other Loan Documents, provided that no Lender shall
be liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from Agent's gross negligence or willful misconduct. WITHOUT LIMITATION OF THE
FOREGOING, EACH LENDER INTENDS AND AGREES THAT THE FOREGOING INDEMNITIES SHALL
APPLY TO AGENT WITH RESPECT TO LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES,
PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS WHICH IN
WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF THE NEGLIGENCE OR CLAIMS OF
NEGLIGENCE OF SUCH AGENT OR ANY OTHER AGENT OR ANY STRICT LIABILITY OR CLAIMS OF
STRICT LIABILITY.
If a Lender Defaults, such Lender shall indemnify, defend and hold
Agent and each of the other Lenders harmless from and against any and all
losses, damages, liabilities, or expenses (including, but not limited to,
reasonable attorneys' fees and interest at the Default Rate set forth in this
Agreement for funds advanced by Agent or any one of Lenders on account of the
defaulting Lender) which they may sustain or incur by reason of or in
consequence of the defaulting Lender's failure or refusal to abide by its
obligations under the Loan Documents. Agent may set off against payments due to
the defaulting Lender, for the claims of Agent and the other Lenders against the
defaulting Lender. The exercise of the above remedies shall not reduce, diminish
or liquidate the defaulting Lender's Pro Rata Share or the obligations for the
sharing of losses and reimbursement for costs, liabilities and expenses under
this Agreement.
11.16 BENEFIT OF SECTION. The agreements contained in this SECTION
11.16 are solely for the benefit of Agent and Lenders (except for the agreements
in SECTION 11.2 that explicitly relate to Borrower), and are not for the benefit
of, or to be relied upon by, Borrower, or any other Person.
SECTION 12 MISCELLANEOUS.
12.1 PAYMENT OF EXPENSES; INDEMNITY.
(1) Borrower agrees to pay (within 5 days after the receipt of
written notice from Agent) all out-of-pocket costs and expenses of
Agent and the Lenders (including, without limitation, reasonable
attorneys' fees) incurred by them in connection with the presentation
and enforcement of Agent's and Lenders' rights under this Agreement
(including, without limitation, any costs or expenses incurred under
SECTION 8.6 after the occurrence and during the continuance of an Event
of Default or a Potential Event of Default) and the other Loan
Documents, and all out-of-pocket costs and expenses of Agent
(including, without limitation, reasonable attorneys' fees) incurred by
it in connection with the negotiation,
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<PAGE> 64
preparation, execution and delivery of this Agreement and the other Loan
Documents and any and all amendments, modifications and supplements hereto or
thereto.
(2) Borrower further agrees: (i) to defend, protect,
indemnify, and hold harmless Agent, each of the other Lenders and each
of their respective officers, directors, employees, attorneys and
agents (including, without limitation, those retained in connection
with the satisfaction or attempted satisfaction of any of the
conditions set forth in SECTION 5) (collectively, the "INDEMNITEES")
from and against any and all liabilities, obligations, losses (other
than loss of profits), damages, penalties, actions, judgments, suits,
claims, costs, reasonable expenses and disbursements of any kind or
nature whatsoever (excluding any taxes and including, without
limitation, the reasonable fees and disbursements of counsel for such
Indemnitees in connection with any investigative, administrative or
judicial proceeding, whether or not such Indemnitees shall be
designated a party thereto), imposed on, incurred by, or asserted
against such Indemnitees in any manner relating to or arising out of:
(A) this Agreement or the other Loan Documents, or any act, event or
transaction related or attendant thereto, the making of the Loans
hereunder, the management of such Loans, the use or intended use of the
proceeds of the Loans hereunder, or any of the other transactions
contemplated by the Loan Documents; or (B) any Liabilities and Costs
relating to violation of any Environmental, Health or Safety
Requirements of Law, the past, present or future operations of
Borrower, any Subsidiary or any of their respective predecessors in
interest, or, the past, present or future environmental, health or
safety condition of any respective Property of Borrower or any
Subsidiary, the presence of asbestos-containing materials at any
respective Property of Borrower or any Subsidiary, or the Release or
threatened Release of any Contaminant into the environment
(collectively, the "INDEMNIFIED MATTERS"); provided, however, Borrower
shall have no obligation to an Indemnitee hereunder with respect to
Indemnified Matters caused by or resulting from the willful misconduct
or gross negligence of such Indemnitee, as determined by a court of
competent jurisdiction in a non-appealable final judgment; and (ii) not
to assert any claim against any of the Indemnitees, on any theory of
liability, for consequential or punitive damages arising out of, or in
any way in connection with, the Commitments, the Obligations, or the
other matters governed by this Agreement and the other Loan Documents.
To the extent that the undertaking to indemnify, pay and hold harmless
set forth in the preceding sentence may be unenforceable because it is
violative of any law or public policy, Borrower shall contribute the
maximum portion which it is permitted to pay and satisfy under
applicable law, to the payment and satisfaction of all Indemnified
Matters incurred by the Indemnitees.
12.2 NON-BUSINESS DAYS. Unless otherwise specifically provided, any
payment or action that is due under any Loan Document on a day that is not a
Business Day may be delayed until the next-succeeding Business Day, but interest
continues to accrue on any applicable payment until payment is in fact made.
12.3 COMMUNICATIONS. Unless otherwise specifically provided, whenever
any Loan Document requires or permits any consent, approval, notice, request, or
demand from one party to another, that communication must be in writing to be
effective and is deemed to have been given: (a) if by telecopy, when transmitted
to the appropriate telecopy number set forth in such party's signature page
hereto (but, without affecting the date when the telecopy is so deemed
delivered, it must be confirmed by telephone promptly after being sent); (b) if
by mail, on the third Business Day after it is enclosed in an envelope and
properly addressed to such party at the address set forth in such party's
signature page hereto, stamped, sealed, and deposited in the appropriate
official postal service; or (c) if by any other means, when actually delivered
to the address of such party as set forth in such party's signature page hereto.
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<PAGE> 65
12.4 FORM AND NUMBER OF DOCUMENTS. The form, substance, and number of
counterparts of each writing to be furnished under this Agreement must be
satisfactory to Agent and its counsel.
12.5 EXCEPTIONS TO COVENANTS. Borrower may not take or fail to take any
action that is permitted as an exception to any of the covenants contained in
any Loan Document if that action or omission would result in the breach of any
other covenant contained in any Loan Document.
12.6 SURVIVAL. All covenants, agreements, undertakings,
representations, and warranties made in any of the Loan Documents survive all
closings under the Loan Documents and, except as otherwise specified, are not
affected by any investigation made by any party.
12.7 GOVERNING LAW. Unless otherwise stated in any Loan Document, the
Laws of the State of New York (without regard to its conflict of laws
principles) and of the United States of America govern the rights and duties of
the parties to the Loan Documents and the validity, construction, enforcement,
and interpretation of the Loan Documents.
12.8 INVALID PROVISIONS. Any provision in any Loan Document held to be
illegal, invalid, or unenforceable is fully severable; the appropriate Loan
Document shall be construed and enforced as if that provision had never been
included; and the remaining provisions shall remain in full force and effect and
shall not be affected by the severed provision. Borrower, Agent and Lenders
agree to negotiate (between themselves and with any other party to that Loan
Document), in good faith, the terms of a replacement provision as similar to the
severed provision as may be possible and be legal, valid, and enforceable.
12.9 PARTIES BOUND; ASSIGNMENT.
(1) PARTIES BOUND. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that Borrower may not assign
or otherwise transfer any of its rights under this Agreement without
the prior written consent of all Lenders.
(2) PARTICIPATIONS. Any Lender may at any time grant to one or
more banks or other institutions (each a "PARTICIPANT") a participating
interest in its Commitment or any or all of its Loans. In the event of
any such grant by a Lender of a participating interest to a
Participant, such Lender shall remain responsible for the performance
of its obligations hereunder, and Borrower and Agent shall continue to
deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement
pursuant to which any Lender may grant such a participating interest
shall provide that such Lender shall retain the sole right and
responsibility to enforce the Obligations hereunder including, without
limitation, the right to approve any amendment, modification or waiver
of any provision of this Agreement. Borrower agrees that each
Participant shall be entitled to the benefits of SECTION 4 hereof with
respect to its participating interest. An assignment or other transfer
which is not permitted by SECTION 12.9(c) below shall be given effect
for purposes of this Agreement only to the extent of a participating
interest granted in accordance with this SECTION 12.9(b).
Notwithstanding the foregoing, any participation under this SECTION
12.9(b) shall be in a minimum amount of $5,000,000.
(3) ASSIGNMENTS. Any Lender may at any time, with the consent
of Borrower (which consent may not be unreasonably withheld), assign to
one or more lending institutions (each an
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<PAGE> 66
"ASSIGNEE") all, or a proportionate part of all, of its rights and
obligations under this Agreement and its Note, and such Assignee shall
assume such rights and obligations, pursuant to an Assignment and
Acceptance; provided, however, that the foregoing shall not be
applicable in the case of, and this SECTION 12.9(c) shall not restrict,
an assignment or other transfer by any Lender to a Federal Reserve
Bank. Upon execution and delivery of such Assignment and Acceptance
Agreement, payment by such Assignee to such transferor Lender of an
amount equal to the purchase price agreed between such transferor
Lender and such Assignee and payment of a processing fee of $3500 to
Agent, such Assignee shall be a Lender party to this Agreement and
shall have all the rights and obligations of a Lender with a Commitment
as set forth in such Assignment and Acceptance Agreement, and the
transferor Lender shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party
shall be required. Upon the consummation of any assignment pursuant to
this SECTION 12.9(c), the transferor Lender, Agent and Borrower shall
make appropriate arrangements so that, if required, new Notes are
issued to such Assignee and the transferor Lender. Notwithstanding the
foregoing, any assignment under this SECTION 12.9(c) shall be in a
minimum amount of $5,000,000.
12.10 FORUM, CONSENT TO SERVICE AND JURISDICTION, AND JURY TRIAL. Any
Litigation against Borrower with respect to any Loan Document or any judgment
entered by any court in respect of any Loan Document may be brought in New York
courts or in the United States courts located in the Borough of Manhattan in New
York City as Agent in its sole discretion may elect. Borrower hereby submits to
the non-exclusive jurisdiction of those courts for the purpose of any
Litigation. Borrower hereby agrees that service of all writs, process, and
summonses in any Litigation brought in New York may be brought upon Process
Agent, and Borrower irrevocably appoints Process Agent as Borrower's true and
lawful attorney-in-fact in Borrower's name, place, and stead to accept that
service of all of those writs, process, and summonses. Borrower irrevocably
consents to the service of process in any Litigation in those courts by the
mailing it by registered or certified mail, postage prepaid, to Borrower's
address for purposes of notices under this Agreement. Borrower hereby
irrevocably waives any objections which it may now or in the future have to the
laying of venue of any Litigation arising out of or relating to any Loan
Document brought in any court located in the Borough of Manhattan, New York
City, and further irrevocably waives any claim that any such Litigation brought
in that court has been brought in an inconvenient forum. BORROWER WAIVES, TO THE
FULLEST EXTENT LAWFUL TO DO SO, ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION BASED UPON OR ARISING OUT OF ANY LOAN DOCUMENT.
12.11 ENTIRETY. The Loan Documents embody the entire agreement between
the parties and supersede all prior agreements and understandings, if any,
relating to the subject matter of the Loan Documents.
12.12 AMENDMENTS, CONSENTS, CONFLICTS, AND WAIVERS. Unless otherwise
specifically provided: (a) the provisions of this Agreement may be amended,
modified, or waived, only by an instrument in writing executed by Borrower and
Agent (with the authorization of the Requisite Lenders or Supermajority Lenders,
as the case may be) and supplemented only by documents delivered or to be
delivered in accordance with the express terms of this Agreement; (b) any
conflict or ambiguity between the terms and provisions of this Agreement and
terms and provisions in any other Loan Document is controlled by the terms and
provisions of this Agreement; (c) no course of dealing or any failure or delay
by Agent in exercising any right or remedy operates as a waiver of that right or
remedy, and (d) a waiver must be in writing and signed by Agent to be effective
and will be effective only in the specific instance and for the specific purpose
for which it is given.
12.13 MULTIPLE COUNTERPARTS. Any Loan Document may be executed in a
number of identical counterparts (including, at Lender's discretion,
counterparts or signature pages executed and transmitted by
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telecopy) with the same effect as if all signatories had signed the same
document. All counterparts must be construed together to constitute one and the
same instrument.
12.14 HEADINGS. Section headings are for convenience of reference only
and shall in not affect the interpretation of this Agreement.
12.15 PARTIES. Each Loan Document to which Borrower, Agent and Lenders
are party binds and inures to them and their respective successors and permitted
assigns. Borrower may not assign or transfer any rights or obligations under any
Loan Document without first obtaining Agent's and Lenders' prior written
consent, and any purported assignment or transfer without such consent is void.
REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGE(S) FOLLOW(S).
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EXECUTED effective as of the date first written above.
BORROWER:
U.S. RESTAURANT PROPERTIES OPERATING L.P.
By: USRP Managing, Inc.,
its General Partner
By:
-------------------------------
Name:
Title:
Address for notice:
5310 Harvest Hill Road
Suite 270, LB 168
Dallas, Texas 75230
Telephone: 972-387-1487
Telecopy: 972-490-9119
Attention: Fred H. Margolin
Chairman
Signature Page to Credit Agreement
<PAGE> 69
AGENT:
CREDIT LYONNAIS NEW YORK BRANCH
By:
-------------------------------------
Name:
Title:
Address for notice:
1301 Avenue of the Americas
New York, New York 10019
Telephone: 212-261-7587
Telecopy: 212-261-3776
Attention: Mr. Kevin Kelsey
Loan Administration
With copy to:
Credit Lyonnais Dallas
Representative Office
2200 Ross Avenue
Suite 4400W
Dallas, Texas 75201
Telephone: 214-220-2311
Telecopy: 214-220-2323
Attention: Mr. Robert Smith
Vice President
and
Ms. Judy Gordon
Loan Administration
Signature Page to Credit Agreement
<PAGE> 70
LENDERS:
Commitment: $25,000,000 FIRST COLUMBINE LIFE INSURANCE COMPANY
By:
-------------------------------------
Name:
Title:
Address for notice:
ING Investment Management LLC
5780 Powers Ferry Road
Atlanta, Georgia 30327
Telephone: 770-690-4744
Telecopy: 770-690-4899
Attention: Mr. Greg Addicks
Signature Page to Credit Agreement
<PAGE> 71
Commitment: $15,000,000 CREDIT LYONNAIS NEW YORK BRANCH
By:
-------------------------------------
Name:
Title:
Address for notice:
1301 Avenue of the Americas
New York, New York 10019
Telephone: 212-261-7587
Telecopy: 212-261-3776
Attention: Mr. Kevin Kelsey
Loan Administration
With copy to:
Credit Lyonnais Dallas
Representative Office
2200 Ross Avenue
Suite 4400W
Dallas, Texas 75201
Telephone: 214-220-2311
Telecopy: 214-220-2323
Attention: Mr. Robert Smith
Vice President
and
Ms. Judy Gordon
Loan Administration
Signature Page to Credit Agreement
<PAGE> 72
Commitment: $10,000,000 NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION
By:
-------------------------------------
Name:
Title:
Address for notice:
51 Madison Avenue
Suite 206
New York, New York 10010
Telephone: 212-576-8383
Telecopy: 212-447-4122
Attention: Mr. Edward Fitzgerald
Signature Page to Credit Agreement
<PAGE> 1
EXHIBIT 12.1
U.S. RESTAURANT PROPERTIES, INC.
RATIOS OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
(IN THOUSANDS)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-----------------------------------------------------
1995 1996 1997 1998 1999
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Net income (loss) $ 5,223 $ 7,473 $ (9,393) $ 5,917 $ 790
Fixed Charges:
Interest Expense 262 2,720 10,011 16,689 29,410
Capitalized Interest -- -- -- 493 1,346
Preferred Stock Dividend Requirements -- -- 868 7,102 7,102
-------- -------- -------- -------- --------
Total Fixed Charges 262 2,720 10,879 24,284 37,858
Less Preferred Stock Dividend Requirements -- -- 868 7,102 7,102
======== ======== ======== ======== ========
Earnings $ 5,485 $ 10,193 $ 618 $ 23,099 $ 31,546
======== ======== ======== ======== ========
Ratio of Earnings to Fixed Charges 20.94x 3.75x N/A(1) 1.34x 1.03x
Ratio of Earnings to Combined
Fixed Charges and preferred
stock dividends 20.94x 3.75x N/A(1) N/A(2) N/A(3)
</TABLE>
(1) For 1997, the Company had total fixed charges of $10,011 and total fixed
charges and preferred stock dividends of $10,879 compared to earnings of
$618. This resulted in a shortfall of earnings over fixed charges of
$9,393, and a shortfall of earnings over combined fixed charges and
preferred stock dividends of $10,261. During 1997, the Company recorded a
non-cash, unusual charge of $19,220 related to the termination of the
management contract between its predecessor and the managing general
partner of its predecessor. Excluding the effects of this unusual charge,
the ratio of earnings to fixed charges and the ratio of earnings to
combined fixed charges and preferred stock dividends would have been 1.98x
and 1.82x, respectively for 1997.
(2) For 1998, the Company had total combined fixed charges and preferred stock
dividends of $24,284 compared to earnings of $23,099. This resulted in a
shortfall of earnings over combined fixed charges and preferred stock
dividends of $1,185. During 1998, the Company recorded a non-cash, unusual
charge of $12,047 related to 495,509 operating partnership units accrued
according to the 1997 termination of the management contract. Excluding the
effects of this unusual charge, the ratio of earnings to combined fixed
charges and preferred stock dividends would have been 1.45x for 1998.
(3) For 1999, the Company had total combined fixed charges and preferred stock
dividends of $37,858 compared to earnings of $31,546. This resulted in a
shortfall of earnings over combined fixed charges and preferred stock
dividends of $6,312. During 1999 the Company recorded a non-cash charge for
impairment of long lived assets of $5,000, write downs of tenant notes
receivable of $7,024, and severance payments related to the resignation of
the Company's President of $750. Excluding the effects of these charges,
the ratio of earnings to combined fixed charges and preferred stock
dividends would have been 1.17x.
<PAGE> 1
EXHIBIT 21.1
U.S. RESTAURANT PROPERTIES, INC.
LIST OF SUBSIDIARIES AS OF DECEMBER 31, 1999
The following sets forth a list of the registrants direct and indirect
subsidiaries as of December 31, 1999 together with their state of organization.
<TABLE>
<CAPTION>
SUBSIDIARY STATE OF ORGANIZATION
---------- ---------------------
<S> <C>
USRP Managing, Inc. Delaware
USRP Renovation Corp. Texas
Restaurant Acquisition Corp. Texas
Restaurant Funding, Inc. Texas
Restaurant Contractor Corp. Texas
U.S. Restaurant Properties Operating L.P. Delaware
Restaurant Property Partners, L.P. Texas
USRP (West Virginia) Partners, L.P. Texas
Restaurant Renovation Partners, L.P. Texas
U.S. Restaurant Properties Development, L.P. Texas
USRP (Carolina), Ltd. Texas
USRP (Lincoln), Ltd. Texas
USRP (Norman), Ltd. Texas
USRP (Dee Dee), LLC Texas
USRP (Sybra), LLC Texas
USRP (Ribbit), LLC Texas
USRP (Jones), LLC Texas
USRP (Central Avenue), LLC Texas
USRP (Midon), LLC Texas
USRP (Susi), LLC Texas
USRP (Minnesota), LLC Texas
USRP (Acquisition), LLC Texas
USRP (Popeye's), LLC Texas
USRP (Finance), LLC Texas
USRP (Cal), LLC Texas
USRP GP, LLC Texas
USRP (San Antonio), Ltd. Texas
USRP (66), Ltd. Texas
USRP (Austin), Ltd. Texas
USRP (Bob), LLC Texas
USRP (Don), LLC Texas
USRP (Fred), LLC Texas
USRP (Illinois), LLC Texas
USRP (Jennifer), LLC Texas
USRP (Missouri), LLC Texas
USRP (St. Louis), LLC Texas
USRP (Sarah), LLC Texas
USRP (Steve), LLC Texas
USRP (Valerie), LLC Texas
USRP (Palma), LLC Texas
USRP (Smyrna), LLC Texas
USRP (Legend), LLC Texas
USRP (Gold), LLC Texas
USRP (Lavid), L.P. Texas
</TABLE>
<PAGE> 2
U.S. RESTAURANT PROPERTIES, INC.
LIST OF SUBSIDIARIES AS OF DECEMBER 31, 1998 (continued)
<TABLE>
<CAPTION>
SUBSIDIARY STATE OF ORGANIZATION
---------- ---------------------
<S> <C>
USRP (CAP), Inc. Texas
USRP (PAC), L.P. Texas
USRP (T&C), LP Texas
USRP (Carroll), LLC Texas
USRP (BC), LLC Texas
USRP (Fain 10), L.P. Texas
USRP (Hollis), LLC Texas
USRP (Bill), LLC Texas
USRP (Chris), LLC Texas
USRP (Molly), LLC Texas
USRP (Sandra), LLC Texas
USRP (Pat), LLC Texas
USRP (Kil), LLC Texas
Oahu Terminal, LLC Texas
Oahu Convenience Stores, LLC Texas
USRP (AZ1), LLC Texas
USRP (Gant1), LLC Texas
USRP (Gant2), LLC Texas
USRP (Gant3), LLC Texas
USRP (Gant4), LLC Texas
USRP (Gant5), LLC Texas
USRP (Gant6), LLC Texas
USRP (Green), LLC Texas
USRP (JV1), LLC Texas
USRP (Manager), LLC Texas
USRP (Martin), LLC Texas
USRP (Seminole), LLC Texas
USRP (Warren), LLC Texas
USRP (Wig), LLC Texas
USRP GP1, LLC Texas
USRP GP2, LLC Texas
USRP GP3, LLC Texas
USRP GP4, LLC Texas
USRP GP5, LLC Texas
USRP GP6, LLC Texas
USRP GP7, LLC Texas
USRP GP8, LLC Texas
USRP (Adams), L.P. Texas
USRP (Katy), L.P. Texas
USRP (Maier), L.P. Texas
USRP (Quest), L.P. Texas
USRP/HCI Partnership 1, L.P. Delaware
</TABLE>
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Registration Statements on
Form S-3 (Registration Nos. 333-66371 and 333-34263) of U.S. Restaurant
Properties, Inc. of our report dated March 30, 2000 (which report expresses an
unqualified opinion and includes an explanatory paragraph relating to a change
in the method of accounting for contingent rents to conform to the consensus
reached by the Emerging Issues Task Force in Issue 98-9 on May 21, 1998)
appearing in this Annual Report on Form 10-K of U.S. Restaurant Properties,
Inc. for the year ended December 31, 1999.
DELOITTE & TOUCHE LLP
Dallas, Texas
March 30, 2000
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 9,695
<SECURITIES> 13,794
<RECEIVABLES> 14,395
<ALLOWANCES> (4,347)
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 634,521
<DEPRECIATION> (49,381)
<TOTAL-ASSETS> 702,591
<CURRENT-LIABILITIES> 0
<BONDS> 396,622
0
4
<COMMON> 15
<OTHER-SE> 194,145
<TOTAL-LIABILITY-AND-EQUITY> 702,591
<SALES> 0
<TOTAL-REVENUES> 79,617
<CGS> 0
<TOTAL-COSTS> 78,905
<OTHER-EXPENSES> 165
<LOSS-PROVISION> 10,901
<INTEREST-EXPENSE> 29,410
<INCOME-PRETAX> (6,312)
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (6,312)
<EPS-BASIC> (.42)
<EPS-DILUTED> (.42)
</TABLE>
