Exhibit 16(b)(2)
[U.S. REALTY ADVISORS, LLC LOGO]
February 21, 2001
Xx. Xxxxxx X. Xxxxxxx
Executive Vice President, CFO & Treasurer
Uno Restaurant Corporation
000 Xxxxxxx Xxxx Xxxx
Xxxx Xxxxxxx, XX 00000
RE: SALE/LEASEBACK OF PIZZERIA UNO CHICAGO BAR AND GRILL RESTAURANT PROPERTIES
Dear Bob:
The following agreement (this "Agreement") sets forth the primary business terms
and conditions under which special purpose entities organized by principals of
U.S. Realty Advisors, LLC (collectively, "Purchaser" or "Lessor") are interested
in purchasing a portfolio of Pizzeria Uno Chicago Bar & Grill restaurant
properties from Uno Restaurant Corporation ("Uno") or its affiliates or
subsidiaries (collectively, "Sellers"), and subsequently net leasing such
properties to Uno, in its capacity as lessee ("Lessee"), pursuant to a long term
bond master lease.
THE PROPERTIES Fee title in a portfolio of twelve (12) properties
including the land and improvements thereto (each a
"Property" and, collectively, the "Properties")
located in ten (10) states, and a Lessor's lien on
all machinery, equipment and other personal property
at each of the Properties.
GROSS PURCHASE PRICE Approximately $25,140,000 including capitalized
closing costs ("Closing Costs").
LESSEE Uno Restaurant Corporation.
LESSOR A special-purpose, bankruptcy remote entity created
by Purchaser for the purpose of acquiring the
Properties and subsequently net leasing the
Properties to Lessee.
PRIMARY LEASE TERM Twenty (20) years from the date of closing (the
"Primary Term").
MASTER LEASE The master lease for the Properties shall be an
unconditional, bond-type, triple-net form (the
"Master Lease"). Lessee shall be responsible for all
costs and expenses associated with the management and
maintenance of the Properties, including, but not
limited to, operating expenses, maintenance, taxes,
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assessments, insurance, repairs and replacements,
including roof and structural items. The obligation
of the Lessee to pay rent under the Master Lease will
be absolute and unconditional. The Master Lease shall
require the Properties be used and operated under the
brand name Pizzeria Uno Chicago Bar & Grill, other
nationally or regionally recognized concepts of
Lessee, or other restaurant concept of a nationally
or regionally recognized owner/operator; provided
however, that at all times during the Primary Term of
the Lease, at least 80% (equal to nine (9)) of the
Properties in the portfolio must be operated under
the brand name Pizzeria Uno Chicago Bar & Grill or
any other nationally or regionally recognized
concepts operated by Lessee, as approved by Lessor
and Lender.
RENT PAYMENT Aggregate annual rent payments ("Rent Payments") for
the Properties will be payable in equal monthly
installments in advance. Purchaser is willing to
offer Lessee three alternative Rent Payment
structures as indicated under Base Rent Payments on
Exhibit A (attached hereto). The rental constants set
forth on Exhibit A are expressed as a percentage of
the Net Purchase Price. Exhibit A has been prepared
assuming that RVI America Services Company ("RVI")
will insure to Lender a balloon at maturity on the
Financing equal to 35% of the appraised value of the
Properties. If Purchaser does not obtain a policy
equal to at least 35% of the appraised value of the
Properties, the Rent Payments will be adjusted upward
as appropriate.
PRICING PROCESS The Rent Payments will be determined based on the
10-year U.S. Treasury Note Rate, the 10-year Swap
Spread, and Financing Spread (as specified in the
Lender's Commitment letter) in effect not more than
two (2) days prior to the date on which the Closing
is to occur. To the extent that the 10-year U.S.
Treasury Note Rate, the 10-year Swap Spread, or
Financing Spread increases or decreases due to
changes in capital market conditions at the time that
Rent Payments are established, the Rent Payment
schedule would be adjusted upward or downward.
Exhibit A annexed hereto illustrates changes in
rental payments based on changes in the 10-year U.S.
Treasury Note Rate. The Base Case Rental Constant was
determined based on a 10-year U.S. Treasury Note Rate
of 5.85% and the current indicative Financing Spread.
In the
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event that changes in capital market conditions cause
the Rental Constant to exceed 12.5%, Seller shall
have the right not to proceed with the closing of the
transaction, provided however, Sellers shall be
responsible for all reasonable costs and expenses as
provided in the section entitled "Closing Costs."
LEASE SECURITY DEPOSIT At Closing, Lessee shall deposit with Lessor an
annually renewable clean irrevocable letter of credit
in the amount of $1,000,000 from a bank and in a form
acceptable to Lessor and Lender. In the event Xxxxxx
fails to renew or extend the letter of credit within
30 days of its scheduled expiration date, Lessor
shall be entitled to draw upon the letter of credit
and hold the proceeds thereof as hereinafter
provided. The letter of credit shall serve as a
security deposit ("Lease Security Deposit") for the
performance of Xxxxxx's obligations under the Master
Lease. Provided no event of default shall have
occurred, the Lease Security Deposit shall be
returned to Lessee within 30 days following Xxxxxx's
delivery of the Rent Payment scheduled to be paid on
or about the 68th month of the Primary Lease Term.
RENEWAL OPTIONS/NEW
LEASE OPTION Lessee will have the right to renew the Master Lease
for four (4), five (5)-year terms at the expiration
of the Primary Term or the applicable renewal period,
as long as no default or event of default shall have
occurred and be continuing beyond applicable notice
and grace periods for each renewal. If Lessee chooses
one of the escalating options, the net rent for each
renewal term shall be either (i) the net rent in
effect at the end of the Primary Term or preceding
renewal period, as the case may be, increased by 1.2%
for the first year and each succeeding year of the
applicable renewal term or (ii) the net rent in
effect at the end of the Primary Term or preceding
renewal period, as the case may be, increased by 6%.
If Lessee chooses the flat rent payment structure,
Lessee may select one of the renewal rent fixed rate
options as set forth on Exhibit A annexed hereto.
Lessee shall elect the rent and corresponding renewal
option prior to the closing of this transaction. The
first Renewal Option must be exercised no later than
18 months prior to expiration of the Primary Term and
subsequent renewals must be exercised no later than
nine (9) months prior to expiration of the previous
renewal term.
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February 21, 2001
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At the end of the Primary Term, Xxxxxx shall also
have the right to enter into a new master lease for
not less than ten (10) of the Properties as consented
to by Xxxxxx and Lessor, whose consent shall not be
unreasonably withheld, and, in the event of such
election, the rent and other terms under the new
master lease shall be adjusted in a manner consistent
with the Rent Payment structure and other terms from
the Primary Term.
FINANCING The closing of the equity portion of the transaction
will be simultaneous with FFCA Funding Corporation
("Lender") providing first mortgage financing
("Financing") to Purchaser on the conditions as
outlined in the commitment letter annexed hereto as
Exhibit B (the "Commitment").
AGGREGATE FIXED CHARGE
COVERAGE Lessee shall be required to achieve and maintain an
aggregate annual Fixed Charge Coverage Ratio (as
defined below) to be calculated at Lessee's fiscal
year end with respect to all of the Properties equal
to or greater than 1.25:1. If Lessee does not achieve
such annual Fixed Charge Coverage Ratio within 30
days following notice from Lessor, Lessee shall be
required at its election to:
1. make a rejectable offer to substitute a
substitute property or properties acceptable
to Purchaser and Lender and otherwise
qualifying as a Substitute Property (as
defined in the section titled
"Substitution", below) for those Properties
having the lowest Fixed Charge Coverage
Ratio (as determined on a Property by
Property basis) to the extent necessary to
raise the Fixed Charge Coverage Ratio to not
less than 1.25 to 1; or
2. make a rejectable offer to purchase those
Properties having the lowest Fixed Charge
Coverage Ratio (as determined on a Property
by Property basis) to the extent necessary
to raise the Fixed Charge Coverage Ratio on
the Properties remaining to not less than
1.25 to 1. The purchase price for the
Properties being purchased by Lessee shall
be a scheduled termination value (attached
as Exhibit C hereto) (but without any yield
maintenance payment due on the Financing);
or
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3. prepaying Rent (a "Prepayment of Rent") to
the extent necessary to raise the Fixed
Charge Coverage Ratio to not less than 1.25
to 1 on the remaining Rent Payments; or
4. subject to approval by Purchaser's and
Xxxxxx's bankruptcy counsel and the rating
agencies, making a security deposit (an
"FCCR Security Deposit") to the extent
necessary to raise the Fixed Charge Coverage
Ratio to not less than 1.25 to 1 assuming
the FCCR Security Deposit was utilized to
make a Prepayment of Rent as provided in #3
above; provided, however, Lessee may not
utilize the cure provision to the extent
that the aggregate FCCR Security Deposit and
Lease Security Deposit would exceed one year
of Rent in the aggregate (it being expressly
understood and agreed that Lessee may
utilize a combination of Prepayment of Rent
as provided in #3 above and FCCR Security
Deposit to effectuate a cure as long as the
aggregate FCCR Security Deposit and Lease
Security Deposit would exceed one year of
Rent). The FCCR Security Deposit may be made
by Lessee depositing with Lessor an annually
renewable clean irrevocable letter of credit
from a bank and in a form acceptable to
Lessor and Lender. In the event Xxxxxx fails
to renew or extend the letter of credit
within 30 days of its scheduled expiration
date, Lessor shall be entitled to draw upon
the letter of credit and hold the proceeds
thereof as hereinafter provided.
In the event Lessee elects to make a Prepayment of
Rent as herein provided, the reduction in annual Rent
Payments (the "Required Rent Reduction") and the
amount of required Prepayment of Rent shall be
calculated as follows:
1. Required Rent Reduction shall be equal to
the annual Rent Payment prior to reduction x
[(1 - (Actual Fixed Charge Coverage Ratio/
1.25)], and
2. Required Prepayment of Rent shall be equal
to Gross Purchase Price x [1 - (Actual Fixed
Charge Coverage Ratio / 1.25)] x [1 - (2/3
of # of months elapsed on the
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Master Lease/276)].
Notwithstanding the preceding formula, Lessor and
Xxxxxx shall seek to negotiate, prior to the closing
of the contemplated transaction, a revised formula
for calculating the Required Prepayment of Rent that
will reduce the amount of rent required to be prepaid
yet maintain Lessor's net economic return.
In the event Lessee elects to make an FCCR Security
Deposit as herein provided, (i) no reduction or other
adjustment of Rent shall be made and (ii) upon Lessee
being in compliance with the Fixed Charge Coverage
Ratio for a succeeding fiscal year and provided no
other event of default shall have occurred and be
continuing, the FCCR Security Deposit shall be
returned to Lessee and no FCCR Security Deposit shall
be required unless and until Lessee shall again fail
to maintain the Fixed Charge Coverage Ratio. Upon
expiration of the Master Lease and full performance
of Xxxxxx's obligations thereunder, the FCCR Security
Deposit shall be returned to Lessee.
The term Fixed Charge Coverage Ratio shall mean the
ratio of (a) retail sales less operating expenses
from Lessee's financial statement before
non-recurring items and after a corporate overhead
allocation (equal to 5% of gross sales) plus
depreciation and amortization expense and operating
lease payments, to (b) the sum of any loan payments
and operating lease payments which are associated
with the Properties.
RIGHT OF FIRST OFFER Lessee will have a right of first offer from Lessor
to Lessee whereby Lessor shall, prior to selling its
interest in the Properties to any third party, first
offer to sell such interest to Lessee by written
offer setting forth all of the material business
terms and conditions of the proposed sale. Lessee
shall have 30 days to elect to accept such offer on
such terms and conditions (with silence being deemed
a rejection of such offer).
COOPERATION IN
SECURITIZATION Seller acknowledges that the Financing will permit
Lender to securitize, sell, transfer, assign or sell
participations in the Financing. Xxxxxx agrees to
cooperate in good faith with Xxxxxxxxx and Lender in
connection therewith as provided in
[U.S. REALTY ADVISORS, LLC LOGO] Xx. Xxxxxx X. Xxxxxxx
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the Commitment, and shall pay its cost and expenses
of such cooperation. Seller shall not be required to
reimburse Lender or Purchaser for their respective
out-of-pocket costs and expenses in connection with
any such securitization. Lender, Lessor and Lessee
shall each pay their own usual and customary
attorneys' fees and other out-of-pocket expenses
incurred in connection with the performance of their
respective obligations under this paragraph,
provided, however, Lessee shall not be responsible
for any such expenses exceeding the sum of $7,500.
LEASE TERMINATION DUE TO
CASUALTY OR CONDEMNATION In the event of the occurrence of a material casualty
or condemnation, the Lessee may restore the property
and continue to operate such Property pursuant to the
terms of the Master Lease or may, at its election,
either offer to (i) make a rejectable offer to
substitute a new Substitute Property (as defined
below) or (ii) make a rejectable offer to purchase
the Property affected by such casualty or
condemnation at a price equal to a scheduled
termination value (attached hereto as Exhibit C)
plus, in the event of a casualty event only, a yield
maintenance payment on the subject Property. If such
rejectable offer is rejected by the Lessor, the lease
obligation with respect to the subject Property shall
terminate on the date specified in the termination
notice and the insurance or condemnation proceeds
shall be payable to the Lessor in connection with the
applicable casualty or condemnation.
SUBSTITUTION From and after the third anniversary (or prior
thereto in connection with a rejectable substitution
offer made in connection with a failure of Lessee to
satisfy the annual Fixed Charge Coverage Ratio),
Lessee shall have the option to make a rejectable
offer to replace any Property with a Substitute
Property (as hereinafter defined), provided that (i)
no event of default shall have occurred and be
continuing beyond applicable notice and grace
periods, and (ii) except as hereinafter provided,
Lessee shall not have the right to substitute more
than 25% of the Properties in the aggregate
(expressed as a whole number) (the "Maximum
Substitution Threshold") inclusive of any and all
substitutions made pursuant to Lessee's right to make
rejectable substitution offer in the event Lessee
fails to maintain the Fixed Charge Coverage Ratio (as
described above). Notwithstanding the foregoing, if
at any time (x) the Lessee shall have substituted
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Properties in an aggregate number equal to the
Maximum Substitution Threshold (inclusive of any and
all substitutions made pursuant to Lessee's right to
make a rejectable substitution offer in the event
Lessee fails to maintain the Fixed Charge Coverage
Ratio (as described above)), and (y) thereafter
Lessee does not achieve the applicable annual Fixed
Charge Coverage Ratio within thirty (30) days
following notice from Lessor, Lessee shall be
entitled to make a rejectable offer to substitute one
or more properties in order to raise the Fixed Charge
Coverage Ratio to not less than 1.25 to 1 as
contemplated under the Section entitled "Aggregate
Fixed Charge Coverage Ratio" above notwithstanding
that Lessee has otherwise met the Maximum
Substitution Threshold.
The term Substitute Property means a property which
(i) has fair market value (as determined by Lessor's
and Lender's respective standard valuation methods)
at least equal to the greater of the value of the
existing Property (a) as of the date of the
substitution or (b) as of the initial closing date;
(ii) has a Fixed Charge Coverage Ratio at least equal
to or greater than the Property being replaced; (iii)
the improvements constituting a part of such
Substitute Property have a remaining useful life
substantially equivalent to, or better than, that of
the improvements constituting a part of the Property
replaced; (iv) is located in (a) the same state as
the Property is then located, or (b) in another state
acceptable to Lessor in Lessor's reasonable
discretion; and (v) has a use consistent with the
Master Leases. Lessee shall be responsible for all
reasonable costs and expenses of Lessor and Lender
associated with such substitution.
LIMITATION OF CORPORATE
DEBT The Master Lease shall provide that Lessee is
prohibited from incurring total funded indebtedness
following any tender offer for any of its outstanding
shares of more than $70,000,000.00 provided, however,
such limitation shall not apply to the-then remaining
balance of Xxxxxx's currently existing indebtedness
to Metropolitan Life Insurance Company, which as of
December 31, 2000 was $4,320,039. The foregoing
limitation on funded indebtedness shall be eliminated
if a tender offer for its outstanding shares does not
occur within 36 months after closing of the
transaction contemplated herein.
[U.S. REALTY ADVISORS, LLC LOGO] Xx. Xxxxxx X. Xxxxxxx
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CHANGE OF CONTROL If Uno is no longer a public company and Xxxxx
Xxxxxxx wishes to transfer ownership in shares of
common stock currently owned by him such that as a
result of such transfer he no longer owns more than
fifty one percent (51%) of the outstanding common
stock of Lessee, such transfer shall be subject to
Lessor's and Lender's consent; provided, however,
that Lessor and Lender shall not unreasonably
withhold such consent if (i) Lessee shall agree to
thereafter maintain a Corporate Fixed Charge Coverage
Ratio (as defined below) of not less than 1.20 to 1
and (ii) Lessor and Xxxxxx receive evidence
satisfactory to them that the following members of
existing management will remain in place after such
transfer: (a) Xxxxx X. Xxxxxx, as President and CEO,
(b) Xxxxxx X. Xxxxxxx, Executive Vice President and
Chief Financial Officerand (c) Xxxx X. XxxXxxxx,
Executive Vice President and Chief Operating Officer.
For purposes hereof, the term "Corporate Fixed Charge
Coverage Ratio" shall mean the ratio of (a) the sum
of net income, depreciation and amortization,
interest expense and operating lease expense, to (b)
the sum of operating lease payments, current
maturities of long term debt, current maturities of
capital leases, and interest expense.
SUBLEASING Lessee will have the right to sublease the Properties
at any time without the consent of the Lessor or the
Lender provided (i) no default or event of default
shall have occurred and be continuing, (ii) the
sublease is subordinate to the Master Lease, (iii)
Lessee remains liable under the Master Lease
notwithstanding such sublease and (iv) the use of the
Property is otherwise consistent with the use
provisions of the Master Lease.
INDEMNITY Lessee will indemnify the Lessor on an after tax
basis against any costs (including reasonable
attorney's fees), losses, and liabilities arising out
of or related to the Properties, including, without
limitation, the condition of title, operation,
leasing, environmental condition thereof, or any act
or omission of Lessee. Excepted from Xxxxxx's
indemnification of Lessor is any liability or loss
arising from the gross negligence or willful
misconduct on the part of the Lessor; provided,
however, for purposes hereof, the term gross
negligence shall not include gross negligence imputed
as a matter of law by reason of the Lessor's interest
in the Properties or its act or
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omission with respect to matters that are the
obligation of Lessee under the Lease.
CLOSING COSTS Lessee will pay all transfer taxes, title fees and
expenses, its own attorney's fees, environmental
insurance, and to the extent necessary, appraisal
fees and all other costs and fees customarily paid by
a Seller in a bond sale/leaseback transaction. If at
any time prior to the Closing, Purchaser determines
that its out-of-pocket expenses in connection with
the Transaction exceed the Sale/Leaseback Fee (as
hereinafter defined), upon the request of Purchaser,
Seller will promptly pay such shortfall to Purchaser.
Purchaser will pay (i) Lender's fee, (ii) costs
related to the procurement of residual value
insurance from RVI, (iii) Lender's attorney's fees,
(iv) its own attorney's fees, and (v) Purchaser's
reasonable out-of-pocket costs. Items (iii) through
(v) would be considered capitalized closing costs
(the "Closing Costs") payable out of the Gross
Purchase Price.
If the transaction does not close for any reason
other than Purchaser's default, the Lessee will be
responsible for all out-of-pocket expenses incurred
by the Purchaser in connection with the transaction,
including, but not limited to, legal fees, lender's
legal fees and due diligence expenses.
Seller shall, simultaneously with the execution
hereof, pay to Purchaser one percent (1%) of the
Gross Purchase Price ("Sale/Leaseback Fee"). If the
transaction does not close for any reason other than
Seller's default, the Sale/Leaseback Fee, less all
out-of-pocket expenses incurred by the Purchaser in
connection with the transaction, including, but not
limited to, legal fees, Xxxxxx's fees and expenses
and due diligence expenses, shall be refunded to
Seller. Upon closing of the transaction, the
Sale/Leaseback Fee shall be earned and
non-refundable.
DUE DILIGENCE DOCUMENTS Seller will provide Purchaser with copies of existing
title commitments, surveys and environmental
assessments for the Properties in the possession of
the Seller.
CLOSING CONDITIONS Upon Seller's and Xxxxxxxxx's execution of this
Agreement, payment of the Expense Deposit and
Xxxxxx's issuance of a financing commitment,
Purchaser is prepared to begin
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immediately negotiating documentation, due diligence
and other required elements of the transaction. The
closing of this transaction is subject to:
(1) Purchaser's and Xxxxxx's approval and
acceptance of each of the Properties in
their respective reasonable discretion
including, without limitation, the
satisfactory review of property-level
economics;
(2) Purchaser's and Xxxxxx's review and approval
of title, ALTA surveys for the Properties,
the Master Leases, site inspection reports
and other customary items of real estate due
diligence and no material adverse change
with respect to each of the Properties
between the date of such approval and
closing;
(3) mutual acceptance of transaction documents,
perfection of liens on the land, building
and improvements (including real estate and
trade fixtures) and satisfaction of
customary closing conditions and due
diligence acceptable in form and substance
to all parties and their respective legal
counsel;
(4) no material adverse change of Xxxxxx's
financial condition between the date of this
Agreement and closing; and
(5) Closing of the Financing.
OUTSIDE CLOSING DATE On or before March 31, 2001.
BROKERAGE/ADVISORY Purchaser and Seller each represent and warrant that
it has dealt with no broker which is entitled to a
real estate commission as a result of this
transaction. Seller and Purchaser shall each
indemnify the other from any loss, liability, cost
and expense, including reasonable attorney's fees,
arising from its breach of the foregoing
representation.
EXCLUSIVITY After the parties have executed this Agreement,
Xxxxxx agrees to withdraw the Properties from the
market to negotiate in good faith exclusively with
Purchaser to reach agreement on the transaction
contemplated hereby.
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NON-DISCLOSURE Seller and Purchaser agree not make any public
disclosure of this Agreement, or the transactions
contemplated hereby without the prior written consent
of the other and Lender, except as may be required by
law or legal process. Notwithstanding the foregoing,
Purchaser and Lender shall not withhold their consent
to the disclosure of the general business terms of
this Agreement (excluding rental constants but
including the Purchase Price and number of Properties
covered by the transaction) to Seller's bankers,
investment bank analysts, rating agencies, investors
and others who are not competitors of Purchaser or
Lender. Notwithstanding the foregoing, there is no
restriction (either express or implied) on any
disclosure or dissemination of the tax structure or
tax aspects of the transactions contemplated by this
Agreement or the any documents executed pursuant
hereto. Further, each party hereto acknowledges that
it has no proprietary rights to any tax matter or tax
idea or to any element of the transaction structure
contemplated hereby.
This Agreement summarizes some of the major business points relating to the
transaction described above, it being understood that other material terms of
the proposed transaction are not yet agreed upon and still must be agreed upon
to the mutual satisfaction of the parties in their respective sole discretion.
This Agreement may be executed in two or more counterparts, each of which shall
constitute an original, but when taken together all such counterparts shall
constitute but one agreement and either party may execute this Agreement by
executing any one or more of such counterparts.
This Agreement shall be valid only if executed by both parties within five (5)
business days from the date hereof.
Very truly yours,
U. S. REALTY ADVISORS, LLC
/s/ Xxxxx Xxxx
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By: Xxxxx Xxxx
Partner
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Accepted and Agreed to as of the day of February, 2001
UNO RESTAURANT CORPORATION
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Executive Vice President, CFO & Treasurer
