-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LT4z5j+kqkeyHGSqiLYmutFSlN0kyXcEURnqDeNydpbbmfFg1HSgWGVYj2hKA0tM 5xlmh1oNUKlhaV6BlpWzcA== 0000912057-01-521407.txt : 20010628 0000912057-01-521407.hdr.sgml : 20010628 ACCESSION NUMBER: 0000912057-01-521407 CONFORMED SUBMISSION TYPE: SC 13E3/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20010627 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: UNO RESTAURANT CORP CENTRAL INDEX KEY: 0000812075 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 042953702 STATE OF INCORPORATION: DE FISCAL YEAR END: 0929 FILING VALUES: FORM TYPE: SC 13E3/A SEC ACT: SEC FILE NUMBER: 005-39163 FILM NUMBER: 1668591 BUSINESS ADDRESS: STREET 1: 100 CHARLES PARK RD CITY: WEST ROXBURY STATE: MA ZIP: 02132 BUSINESS PHONE: 6173239200 MAIL ADDRESS: STREET 1: 100 CHARLES PARK ROAD CITY: WEST ROXBURY STATE: MA ZIP: 02132 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: UNO RESTAURANT CORP CENTRAL INDEX KEY: 0000812075 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 042953702 STATE OF INCORPORATION: DE FISCAL YEAR END: 0929 FILING VALUES: FORM TYPE: SC 13E3/A BUSINESS ADDRESS: STREET 1: 100 CHARLES PARK RD CITY: WEST ROXBURY STATE: MA ZIP: 02132 BUSINESS PHONE: 6173239200 MAIL ADDRESS: STREET 1: 100 CHARLES PARK ROAD CITY: WEST ROXBURY STATE: MA ZIP: 02132 SC 13E3/A 1 a2051116zsc13e3a.txt SC 13E3/A SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13E-3/A (RULE 13e-100) TRANSACTION STATEMENT UNDER SECTION 13(e) OF THE SECURITIES EXCHANGE ACT OF 1934 AND RULE 13e-3 THEREUNDER RULE 13e-3 TRANSACTION STATEMENT UNDER SECTION 13(e) OF THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 2) Uno Restaurant Corporation - -------------------------------------------------------------------------------- (Name of Issuer) Uno Restaurant Corporation Uno Restaurant Holdings Corporation Uno Acquisition Corp. Aaron D. Spencer Uno Associates Craig S. Miller Paul W. MacPhail Alan M. Fox Robert M. Vincent - -------------------------------------------------------------------------------- (Names of Persons Filing Statement) COMMON STOCK - -------------------------------------------------------------------------------- (Title of Class of Securities) 914900 - -------------------------------------------------------------------------------- (CUSIP Number of Class of Securities) Craig S. Miller Steven R. London, Esq. President and Chief Executive Officer Brown Rudnick Freed & Gesmer Uno Restaurant Corporation One Financial Center 100 Charles Park Road Boston, MA 02111 West Roxbury, MA 02132 (617) 856-8200 (617) 323-9200 Aaron D. Spencer Constantine Alexander, Esq. President James E. Dawson, Esq. Uno Restaurant Holdings Corporation Nutter McClennen & Fish LLP Uno Acquisition Corp. One International Place 100 Charles Park Road Boston, MA 02110 West Roxbury, MA 02132 (617) 439-2595 (617) 323-9200 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Person(s) Filing Statement) This statement is filed in connection with (check appropriate box): a. /X/ The filing of solicitation materials or an information statement subject to Regulation 14A, Regulation 14C, or Rule 13e-3(c) under the Securities Exchange Act of 1934. b. / / The filing of a registration statement under the Securities Act of 1933. c. / / A tender offer. d. / / None of the above. Check the following box if the soliciting materials or information statement referred to in checking box (a) are preliminary copies. /X/ Check the following box if the filing is a final amendment reporting the results of the transaction. / / - -------------------------------------------------------------------------------- CALCULATION OF FILING FEE TRANSACTION VALUATION* AMOUNT OF FILING FEE** $44,462,681 $8,893 - -------------------------------------------------------------------------------- *For purposes of calculating the filing fee only. Determined by multiplying 4,560,275 shares of common stock, par value $0.01 per share, of Uno Restaurant Corporation by $9.75 per share. The number of shares of common stock is equal to the total number of outstanding shares of common stock of Uno Restaurant Corporation entitled to receive the merger consideration. **The amount of the filing fee calculated in accordance with Exchange Act Rule 0-11 equals 1/50th of 1% of the transaction valuation. /X/ Check the box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. Amount Previously Paid: $8,893 Form or Registration No.: Schedule 14A (File No. 5-39163) Filing Party: Uno Restaurant Corporation Date Filed: April 27, 2001, June 6, 2001 and June 27, 2001 INTRODUCTION This Amendment No. 2 to Rule 13e-3 Transaction Statement on Schedule 13E-3 (this "Schedule 13E-3") is being filed by: 1) Uno Restaurant Corporation, a Delaware corporation ("Uno"), and the issuer of the equity securities that are the subject of the Rule 13e-3 transaction; 2) Uno Restaurant Holdings Corporation, a Delaware corporation ("Parent"), formed by Aaron D. Spencer, Uno's chairman and majority stockholder; 3) Uno Acquisition Corp., a Delaware corporation and wholly owned subsidiary of Parent ("Newco"); 4) Aaron D. Spencer and Uno Associates, a general partnership owned 80% by Aaron D. Spencer; and 5) Craig S. Miller, Paul W. MacPhail, Alan M. Fox, and Robert M. Vincent, each executive officers of Uno (collectively referred to as the "Management Group" and, together with Uno, Parent, Newco, Aaron D. Spencer and Uno Associates, the "Filing Persons"). Aaron D. Spencer, Uno Associates and the Management Group are collectively referred to herein as the "Affiliate Stockholders." The Affiliate Stockholders and Aaron D. Spencer's two adult children, Mark Spencer and Lisa Cohen, are collectively referred to here as the "Continuing Stockholders." Pursuant to an Agreement and Plan of Merger, dated as of April 19, 2001, among Uno, Parent and Newco, Newco will merge with and into Uno, and Uno will be the surviving corporation. Upon completion of the merger, each issued and outstanding share of Uno common stock will be entitled to receive $9.75 in cash, without interest, except for: (1) all shares of Uno common stock held by Parent, which will be converted into an equal number of shares of the surviving corporation; (2) treasury shares of Uno common stock, which will be canceled and retired without any payment therefor; and (3) shares held by stockholders who properly exercise appraisal rights in accordance with Delaware law. Immediately prior to the completion of the merger, the Spencer Group will contribute all but 50,000 shares of Uno common stock held by each of Mark Spencer and Lisa Cohen to Parent in exchange for shares of preferred stock of Parent. Upon completion of the merger, Parent will be the sole stockholder of Uno as the surviving corporation. Simultaneously with the completion of the merger, each member of the Management Group will purchase shares of common stock of Parent for nominal consideration. If for a combination of tax and economic reasons a member of the Management Group does not want to purchase shares of common stock of Parent, he will receive options to purchase common stock with the intent to provide the same economic benefits that the member of the Management Group would have received had he purchased common stock. In addition, options to purchase shares of common stock of Uno held by Mr. Spencer and the Management Group will be cancelled, and Mr. Spencer and the Management Group will receive options to purchase capital stock of Parent. Immediately following the merger, the Continuing Stockholders, through their ownership of Parent, are expected to own 100% of the outstanding shares of common stock of Uno as the surviving corporation. Concurrently with the filing of this Schedule 13E-3, Uno is filing Amendment No. 2 to its Preliminary Proxy Statement (the "proxy statement") pursuant to which Uno will notify its stockholders of, and solicit proxies from its stockholders for, a special meeting of stockholders for the purpose of approving the merger agreement. The information set forth in the proxy statement, including all schedules and exhibits thereto, is hereby expressly incorporated herein by reference and the responses to each item in this Schedule 13E-3 are qualified in their entirety by the information contained in the proxy statement and the exhibits thereto. ITEM 1. SUMMARY TERM SHEET. The information contained in the sections entitled "SUMMARY TERM SHEET" and "QUESTIONS AND ANSWERS ABOUT THE MERGER" in the proxy statement is incorporated herein by reference. ITEM 2. SUBJECT COMPANY INFORMATION. (a) NAME AND ADDRESS. The information contained in the sections entitled "SUMMARY TERM SHEET" and "THE PARTICIPANTS" in the proxy statement is incorporated herein by reference. (b) SECURITIES. The information contained in the section entitled "MARKET AND MARKET PRICE--Number of Stockholders" in the proxy statement is incorporated herein by reference. (c) TRADING MARKET AND PRICE. The information contained in the section entitled "MARKET AND MARKET PRICE--Market Information" in the proxy statement is incorporated herein by reference. (d) DIVIDENDS. The information contained in the section entitled "MARKET AND MARKET PRICE--Dividends" in the proxy statement is incorporated herein by reference. (e) PRIOR PUBLIC OFFERINGS. The information contained in the section entitled "SPECIAL FACTORS--Background of the Merger" in the proxy statement is incorporated herein by reference. (f) PRIOR STOCK PURCHASES. The information contained in the sections entitled "SPECIAL FACTORS--Background of the Merger," "SPECIAL FACTORS--Recommendation of the Board of Directors, Fairness of the Merger," and "COMMON STOCK PURCHASE INFORMATION" in the proxy statement is incorporated herein by reference. ITEM 3. IDENTITY AND BACKGROUND OF THE FILING PERSONS. (a), (b), (c) NAME AND ADDRESS; BUSINESS AND BACKGROUND ENTITIES; BUSINESS AND BACKGROUND OF NATURAL PERSONS. The information contained in the sections entitled "SUMMARY TERM SHEET," and "THE PARTICIPANTS" in the proxy statement, and in Exhibit D to the proxy statement, is incorporated herein by reference. Uno, one of the Filing Persons, is also the subject company. During the last five years, none of Uno, Parent, Newco, Uno Associates or any of the following persons has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to any judicial or administrative proceeding that resulted in a judgment, decree or final order enjoining further violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of any violation of such laws: 1) to the best knowledge of Uno, Mr. Spencer and each member of the Management Group, each of Uno's current directors or executive officers; 2) to the best knowledge of Uno Associates, each of its partners; and 3) to the best knowledge of Parent and Newco, each of Parent's and Newco's current directors or executive officers. All current Uno, Uno Associates, Parent and Newco principals, directors and executive officers are U.S. citizens. ITEM 4. TERMS OF THE TRANSACTION. (a)(1) TENDER OFFERS. Not applicable. (a)(2)(i) TRANSACTION DESCRIPTION. The information contained in the sections entitled "SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS ABOUT THE MERGER," "THE SPECIAL MEETING - Matters to be Considered at the Special Meeting," and "THE MERGER AGREEMENT" in the proxy statement is incorporated herein by reference. (a)(2)(ii) CONSIDERATION. The information contained in the sections entitled "SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS ABOUT THE MERGER," "THE SPECIAL MEETING - Matters to be Considered at the Special Meeting," and "THE MERGER AGREEMENT--Payment for Shares" in the proxy statement is incorporated herein by reference. (a)(2)(iii) REASONS FOR TRANSACTION. The information contained in the sections entitled "SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS ABOUT THE MERGER," "SPECIAL FACTORS--Background of the Merger," "SPECIAL FACTORS--Recommendation of the Board of Directors; Fairness of the Merger," "SPECIAL FACTORS--Determination of the Fairness of the Merger by Parent, Newco and the Affiliate Stockholders," and "SPECIAL FACTORS--Purpose and Structure of the Merger" in the proxy statement is incorporated herein by reference. (a)(2)(iv) VOTE REQUIRED FOR APPROVAL. The information contained in the sections entitled "SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS ABOUT THE MERGER," "THE SPECIAL MEETING--Record Date and Voting Information," "THE MERGER AGREEMENT--Uno Stockholder Approval" and "THE MERGER AGREEMENT--Conditions to the Merger" in the proxy statement is incorporated herein by reference. (a)(2)(v) DIFFERENCES IN THE RIGHTS OF SECURITY HOLDERS. The information contained in the sections entitled "SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS ABOUT THE MERGER," "SPECIAL FACTORS--Effects of the Merger," "SPECIAL FACTORS--Interests of the Continuing Stockholders in the Merger" and "THE MERGER AGREEMENT-Conversion of Common Stock" in the proxy statement is incorporated herein by reference. (a)(2)(vi) ACCOUNTING TREATMENT. The information contained in the section entitled "SPECIAL FACTORS-Anticipated Accounting Treatment of the Merger" in the proxy statement is incorporated herein by reference. (a)(2)(vii) INCOME TAX CONSEQUENCES. The information contained in the sections entitled "SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS ABOUT THE MERGER," and "SPECIAL FACTORS--Federal Income Tax Consequences" in the proxy statement is incorporated herein by reference. (c) DIFFERENT TERMS. The information contained in the sections entitled "SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS ABOUT THE MERGER," "SPECIAL FACTORS--Effects of the Merger," "SPECIAL FACTORS--Interests of the Continuing Stockholders in the Merger" and "THE MERGER AGREEMENT--Conversion of Common Stock" in the proxy statement is incorporated herein by reference. (d) APPRAISAL RIGHTS. The information contained in the sections entitled "QUESTIONS AND ANSWERS ABOUT THE MERGER," "THE SPECIAL MEETING--Appraisal Rights" and "SPECIAL FACTORS--Appraisal Rights" in the proxy statement is incorporated herein by reference. (e) PROVISIONS FOR UNAFFILIATED SECURITY HOLDERS. The information contained in the sections entitled "THE SPECIAL MEETING--Record Date and Voting Information," "SPECIAL FACTORS--Determination of the Fairness of the Merger by Parent, Newco, and the Affiliate Stockholders," "SPECIAL FACTORS--Appraisal Rights" and "WHERE STOCKHOLDERS CAN FIND MORE INFORMATION" in the proxy statement is incorporated herein by reference. (f) ELIGIBILITY FOR LISTING OR TRADING. Not applicable. ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS. (a) TRANSACTIONS. The information contained in the sections entitled "SPECIAL FACTORS--Interests of the Continuing Stockholders in the Merger" which describes transactions during the past two years which were entered into between each filing person (and, if applicable, any of its executive officers, directors or affiliates) and Uno that had a transaction value greater than $60,000, and "COMMON STOCK PURCHASE INFORMATION" in the proxy statement is incorporated herein by reference. (b),(c) SIGNIFICANT CORPORATE EVENTS; NEGOTIATIONS OR CONTACTS. The information contained in the sections entitled "SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS ABOUT THE MERGER," "SPECIAL FACTORS--Background of the Merger," "SPECIAL FACTORS--Effects of the Merger," and "SPECIAL FACTORS--Interests of the Continuing Stockholders in the Merger," each of which describe any negotiations, transactions or material contacts during the past two years between the filing person (and, if applicable, any of its executive officers, directors or affiliates) and Uno relating to the matters set forth in Item 1005(b) and (c) of Regulation M-A, and "COMMON STOCK PURCHASE INFORMATION" in the proxy statement is incorporated herein by reference. (e) AGREEMENTS INVOLVING THE SUBJECT COMPANY'S SECURITIES. The information contained in the sections entitled "SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS ABOUT THE MERGER," "SPECIAL FACTORS--Background of the Merger," "SPECIAL FACTORS--Effects of the Merger," and "SPECIAL FACTORS--Interests of the Continuing Stockholders", each of which describe any agreements, arrangements or understanding, between the filing person (and, if applicable, any of its executive officer, directors or affiliates) and Uno, and "THE MERGER AGREEMENT" in the proxy statement is incorporated herein by reference. ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS. (b) USE OF SECURITIES ACQUIRED. The information contained in the sections entitled "SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS ABOUT THE MERGER," "SPECIAL FACTORS--Effects of the Merger," "SPECIAL FACTORS--Interests of the Continuing Stockholders in the Merger" and "THE MERGER AGREEMENT--Conversion of Common Stock" in the proxy statement is incorporated herein by reference. (c) PLANS. The information contained in the sections entitled "SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS ABOUT THE MERGER," "MARKET AND MARKET PRICE--Dividends," "SPECIAL FACTORS--Background of the Merger," "SPECIAL FACTORS-Effects of the Merger," "SPECIAL FACTORS--Interests of the Continuing Stockholders in the Merger," "SPECIAL FACTORS--Merger Financing," "THE MERGER AGREEMENT" and Exhibit D in the proxy statement is incorporated herein by reference. ITEM 7. PURPOSES, ALTERNATIVES, REASONS AND EFFECTS. (a),(c) PURPOSES; REASONS. The information contained in the sections entitled "SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS ABOUT THE MERGER," "SPECIAL FACTORS--Background of the Merger," "SPECIAL FACTORS--Recommendation of the Board of Directors; Fairness of the Merger," "SPECIAL FACTORS--Determination of the Fairness of the Merger by Parent, Newco and the Affiliate Stockholders," and "SPECIAL FACTORS--Purpose and Structure of the Merger" in the proxy statement is incorporated herein by reference. (b) ALTERNATIVES. The information contained in the sections entitled "SPECIAL FACTORS--Background of the Merger", "SPECIAL FACTORS--Recommendation of the Board of Directors; Fairness of the Merger" and "SPECIAL FACTORS--Alternatives to the Merger" in the proxy statement is incorporated herein by reference. (d) EFFECTS. The information contained in the sections entitled "SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS ABOUT THE MERGER," "SPECIAL FACTORS--Recommendation of the Board of Directors; Fairness of the Merger," "SPECIAL FACTORS-Determination of the Fairness of the Merger by Parent, Newco, and the Affiliate Stockholders," "SPECIAL FACTORS--Effects of the Merger," "SPECIAL FACTORS--Risks that the Merger Will not be Completed," "SPECIAL FACTORS--Interests of the Continuing Stockholders in the Merger," "SPECIAL FACTORS--Certain Risks in the Event of Bankruptcy," "SPECIAL FACTORS--Estimated Fees and Expenses of the Merger," "SPECIAL FACTORS--Federal Income Tax Consequences," and "THE MERGER AGREEMENT" in the proxy statement is incorporated herein by reference. ITEM 8. FAIRNESS OF THE TRANSACTION. (a),(b) FAIRNESS; FACTORS CONSIDERED IN DETERMINING FAIRNESS. The information contained in the sections entitled "SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS ABOUT THE MERGER," "SPECIAL FACTORS--Background of the Merger," "SPECIAL FACTORS--Recommendation of the Board of Directors; Fairness of the Merger," "SPECIAL FACTORS--Determination of the Fairness of the Merger by Parent, Newco and the Affiliate Stockholders," "SPECIAL FACTORS--Purpose and Structure of the Merger" and "SPECIAL FACTORS--Opinion of Financial Advisor to the Special Committee" in the proxy statement, and Exhibit C to the proxy statement, "Opinion of Adams, Harkness & Hill Inc." is incorporated herein by reference. (c) APPROVAL OF SECURITY HOLDERS. The information contained in the sections entitled "SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS ABOUT THE MERGER," "THE SPECIAL MEETING--Record Date and Voting Information," "SPECIAL FACTORS--Recommendation of the Board of Directors; Fairness of the Merger," "THE MERGER AGREEMENT--Uno Stockholder Approval," "THE MERGER AGREEMENT--Conditions to the Merger," and "THE MERGER AGREEMENT--Termination of the Merger Agreement" in the proxy statement is incorporated herein by reference. (d) UNAFFILIATED REPRESENTATIVE. The information contained in the sections entitled "SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS ABOUT THE MERGER," "SPECIAL FACTORS--Background of the Merger," "SPECIAL FACTORS--Recommendation of the Board of Directors; Fairness of the Merger" and "SPECIAL FACTORS--Opinion of Financial Advisor to the Special Committee" in the proxy statement is incorporated herein by reference. (e) APPROVAL OF DIRECTORS. The information contained in the sections entitled "SUMMARY TERM SHEET", "QUESTIONS AND ANSWERS ABOUT THE MERGER," "SPECIAL FACTORS--Background of the Merger" and "SPECIAL FACTORS--Recommendation of the Board of Directors; Fairness of the Merger" in the proxy statement is incorporated herein by reference. (f) OTHER OFFERS. The information contained in the sections entitled "SPECIAL FACTORS--Background of the Merger" and "SPECIAL FACTORS--Recommendation of the Board of Directors; Fairness of the Merger" in the proxy statement is incorporated herein by reference. ITEM 9. REPORTS, OPINIONS, APPRAISALS AND NEGOTIATIONS. (a)-(c) REPORT, OPINION, OR APPRAISAL; PREPARER AND SUMMARY OF THE REPORT; AVAILABILITY OF DOCUMENTS. The information contained in the sections entitled "SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS ABOUT THE MERGER," "SPECIAL FACTORS--Background of the Merger," "SPECIAL FACTORS--Recommendation of the Board of Directors; Fairness of the Merger," "SPECIAL FACTORS--Opinion of Financial Advisor to the Special Committee" and "WHERE STOCKHOLDERS CAN FIND MORE INFORMATION" in the proxy statement is incorporated herein by reference. ITEM 10. SOURCE AND AMOUNTS OF FUNDS OR OTHER CONSIDERATION. (a),(b),(d) SOURCE OF FUNDS; CONDITIONS; BORROWED FUNDS. The information contained in the sections entitled "SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS ABOUT THE MERGER," "SPECIAL FACTORS--Background of the Merger" and "SPECIAL FACTORS--Merger Financing" in the proxy statement is incorporated herein by reference. (c) EXPENSES. The information contained in the sections entitled "SUMMARY TERM SHEET," "THE SPECIAL MEETING--Expenses of Proxy Solicitation," "SPECIAL FACTORS--Risks that the Merger will not be Completed," "SPECIAL FACTORS--Estimated Fees and Expenses of the Merger" and "THE MERGER AGREEMENT--Expense Reimbursement" in the proxy statement is incorporated herein by reference. ITEM 11. INTEREST IN SECURITIES OF THE SUBJECT COMPANY. (a) SECURITIES OWNERSHIP. The information contained in the section "SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT" in the proxy statement, and in Exhibit D to the proxy statement, is incorporated herein by reference. (b) SECURITIES TRANSACTIONS. The information contained in the sections entitled "SPECIAL FACTORS--Interests of the Continuing Stockholders in the Merger," "SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT," and "COMMON STOCK PURCHASE INFORMATION" in the proxy statement, and in Exhibit D to the proxy statement, is incorporated herein by reference. ITEM 12. THE SOLICITATION OR RECOMMENDATION. (d) INTENT TO TENDER OR VOTE IN A GOING-PRIVATE TRANSACTION. The information contained in the sections entitled "SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS ABOUT THE MERGER," "THE SPECIAL MEETING--Record Date and Voting Information" and "SPECIAL FACTORS--Interests of the Continuing Stockholders in the Merger" in the proxy statement is incorporated herein by reference. (e) RECOMMENDATIONS TO OTHERS. The information contained in the sections entitled "SUMMARY TERM SHEET," "QUESTIONS AND ANSWERS ABOUT THE MERGER," and "SPECIAL FACTORS--Recommendation of the Board of Directors; Fairness of the Merger" in the proxy statement is incorporated herein by reference. ITEM 13. FINANCIAL STATEMENTS. (a) FINANCIAL INFORMATION. The information contained in the sections entitled "UNO RESTAURANT CORPORATION SELECTED HISTORICAL FINANCIAL DATA" and "WHERE STOCKHOLDERS CAN FIND MORE INFORMATION" in the proxy statement and in Item 8, "Financial Statements and Supplementary Data," of Uno's most recent Annual Report on Form 10-K for the fiscal year ended October 1, 2000 attached as Exhibit E to the proxy statement and in Item 1, "Financial Statements," of Uno's Quarterly Report on Form 10-Q for the quarter ended April 1, 2001, attached as Exhibit F to the proxy statement, is incorporated herein by reference. (b) PRO FORMA INFORMATION. Not applicable. ITEM 14. PERSONS/ASSETS, RETAINED, EMPLOYED, COMPENSATED OR USED. (a),(b) SOLICITATIONS OR RECOMMENDATIONS; EMPLOYEES AND CORPORATE ASSETS. The information contained in the sections entitled "THE SPECIAL MEETING--Expenses of Proxy Solicitation," "SPECIAL FACTORS--Opinion of Financial Advisor to the Special Committee," "SPECIAL FACTORS--Interests of the Continuing Stockholders in the Merger," "SPECIAL FACTORS--Merger Financing," and "SPECIAL FACTORS--Estimated Fees and Expenses of the Merger" is incorporated herein by reference. ITEM 15. ADDITIONAL INFORMATION. (b) OTHER MATERIAL INFORMATION. The information contained in the sections entitled "SUMMARY TERM SHEET" "QUESTIONS AND ANSWERS ABOUT THE MERGER" and "SPECIAL FACTORS--Litigation Challenging the Merger" in the proxy statement is incorporated herein by reference. ITEM 16. EXHIBITS. (a) Amendment No. 2 to preliminary proxy statement on Schedule 14A filed with the Securities and Exchange Commission on June 27, 2001 (incorporated herein by reference to the proxy statement). (b)(1) Summary of Terms and Conditions from Fleet National Bank, N.A. and SunTrust Bank to Uno, Parent and Newco, dated April 9, 2001, and related documentation.* (b)(2) Letter of Intent from U.S. Realty Trust, L.L.C. to Uno dated February 21, 2001.* (b)(3) Sale-Leaseback Agreement between Zuno Property LLC, Franklin Mills Pizzeria, Inc., Uno Restaurants, Inc., and Saxet Corporation, dated as of May 11, 2001.* (b)(4) Master Lease between Zuno Property LLC and SL Properties, Inc., dated as of May 11, 2001.* (b)(5) Unconditional Guaranty of Payment and Performance by Uno Restaurant Corporation to Zuno Property LLC, dated as of May 11, 2001.* (b)(6) Commitment Letters, as amended, from General Electric Capital Business Asset Funding Corporation issued to Aaron D. Spencer. (c)(1) Fairness Opinion of Adams, Harkness & Hill, Inc., dated April 4, 2001 (incorporated herein by reference to Exhibit C to the proxy statement). (c)(2) Fairness Presentation of Adams, Harkness & Hill Inc., to the Independent Special Committee of the Board of Directors of Uno Restaurant Corporation presented on April 4, 2001.* (c)(3) Letter from Tucker Anthony Incorporated dated February 15, 2001 to Adams, Harkness & Hill Inc. relating to analyses of other comparable transactions.* (c)(4) Letter from Tucker Anthony Incorporated dated February 22, 2001 to Adam, Harkness & Hill Inc. relating to analyses of other comparable transactions.* (c)(5) Presentation of Adams, Harkness & Hill, Inc., to the Special Committee presented on January 29, 2001.* (d)(1) Agreement and Plan of Merger, dated as of April 19, 2001, among Uno, Parent and Newco (incorporated herein by reference to Exhibit A to the proxy statement). (d)(2) Voting Agreement, dated as of April 19, 2001 by and among Uno, each of the Continuing Stockholders.* (d)(3) Form of Guaranty, dated as of April 9, 2001, issued by Aaron D. Spencer in favor of Uno.* (f) Section 262 of the Delaware General Corporation Law (incorporated herein by reference to Exhibit B to the proxy statement). - ---------- * Previously filed as an exhibit to the Schedule 13E-3 and incorporated by reference herein. SIGNATURES After due inquiry and to the best of our knowledge and belief, we certify that the information set forth in this statement is true, complete and correct. Dated: June 27, 2001 UNO RESTAURANT CORPORATION By: /s/ Craig S. Miller ------------------------------------- Craig S. Miller President and Chief Executive Officer UNO RESTAURANT HOLDINGS CORPORATION By: /s/ Aaron D. Spencer ------------------------------------- Aaron D. Spencer President and Chief Executive Officer UNO ACQUISITION CORP. By: /s/ Aaron D. Spencer ------------------------------------- Aaron D. Spencer President and Chief Executive Officer UNO ASSOCIATES By: /s/ Aaron D. Spencer ------------------------------------- Aaron D. Spencer, its general partner /s/ Aaron D. Spencer ---------------------------------------- Aaron D. Spencer /s/ Craig S. Miller ---------------------------------------- Craig S. Miller /s/ Paul W. MacPhail ---------------------------------------- Paul W. MacPhail /s/ Alan M. Fox ---------------------------------------- Alan M. Fox /s/ Robert M. Vincent ---------------------------------------- Robert M. Vincent EX-16.(B)(6) 2 a2052799zex-16_b6.txt EXHIBIT 16(B)(6) Exhibit 16(b)(6) General Electric Capital Business Asset Funding Corporation One Harbour Place, Suite 11 Portsmouth, New Hampshire 03801 603 430-6075 January 11, 2001 (Revised) $3,000,000 Mortgage Loan for Chicago restaurants for 20 year Term Fully Amortizing at 8.375% Fixed Rate. Aaron Spencer Chairman Uno Restaurant Corporation 100 Charles Park Road Boston, MA 2132 Dear Aaron: We are pleased to submit the following proposal for permanent financing of certain real property described below. THIS PROPOSAL IS SUBJECT TO REVIEW AND APPROVAL BY GENERAL ELECTRIC CAPITAL BUSINESS ASSET FUNDING CORPORATION, FINAL TERMS AND CONDITIONS WILL BE ESTABLISHED BY GENERAL ELECTRIC CAPITAL BUSINESS ASSET FUNDING CORPORATION IF APPROVED DURING SUCH REVIEW AND WILL BE SUBJECT TO MUTUALLY SATISFACTORY DOCUMENTATION. SECURED PARTY: GENERAL ELECTRIC CAPITAL BUSINESS ASSET FUNDING CORPORATION or its assigns ("GE CAPITAL"). BORROWER: To Be Determined entity, a proposed limited partnership (or other organization permissable by GE Capital) to be controlled by Aaron Spencer, or otherwise borrowing entry shall be directly or indirectly owned by Uno Restaurant Corporation. SECURITY: The note evidencing the loan shall be secured by a first deed of trust or first mortgage on the BORROWER'S fee simple interest in the real property end improvements thereon generally described as Chicago Uno, Due, and Su Casa, ("Property"). The loan shall be subject to the usual terms, conditions, and remedies contained in GE CAPITAL's customary loan documents. No secondary financing or liens will be permitted, and the entire balance of the loan will be due on sale. The property is currently owned by Uno Restaurant Corp. and is proposed to be sold and leased back to proposed borrower for a minimum term of 20 years at terms and conditions reasonably acceptable to GE Capital, but which shall not be less than 20 years. LOAN AMOUNT: $3,000,000; 90% of the purchase price or cost to construct (which cost specifically excludes developer's overhead and any leasing fees not paid to independent third parties); or 75% of appraised value per MAI appraisal (which appraisal shall be ordered by and subject to GE CAPITAL's approval), whichever is less. Borrower intends to borrow up to 75% Loan To Value which may exceed, based on new appraisal loan amount proposed here which is based on estimated value. INTEREST RATE: 8.375% per annum. PAYMENT SCHEDULE: Interest only shall be paid in advance for the month in which loan closing occurs followed by 239 principal and interest payments in the amount of $25,797.84 due and payable, in arrears, commencing on the first day of the second month following the date of loan closing and every succeeding month thereafter, with all unpaid principal and interest due on the 240th installment date. Amortization of the loan will be based on a 20-year schedule. LOAN FEE: 1% of the Loan Amount to be paid at loan closing. FORWARD COMMITMENT FEE: A non-refundable fee equal to 0% of the initial Loan Amount stated above to be paid upon BORROWER's acceptance of any commitment. RECOURSE: GE CAPITAL shall have full recourse against BORROWER and its general partners, if any, for any failure to make payments as and when due on the promissory note and for the breach of any of the representations, warrants, indemnities and covenants contained in the loan documents. GUARANTY: The loan and all of BORROWER's obligations in connection with the loan (including without limitation BORROWER's obligations under the loan documents and any certificate and indemnity agreement regarding hazardous substances or environmental indemnity agreement) will be unconditionally and irrevocably, jointly and severally guaranteed by Aaron Spencer, unless Uno Restaurant Corporation is the BORROWER, in which case there shall be no guaranty. PREPAYMENT PROVISIONS: Upon not less than thirty (30) days' advance written notice to GE CAPITAL at any time after the 10th anniversary of the due date of the first monthly principal and interest payment due under the promissory note, and upon payment of a prepayment premium, if any, BORROWER shall have the right to prepay all, but not less than all, of the outstanding balance of the loan on any regularly scheduled principal and interest payment date. The prepayment premium shall be determined by (i) calculating the decrease (expressed in basis points) in the current weekly average yield of 10-Year U.S. Treasury Constant Maturities as published in Federal Reserve Statistical Release H, 15 (519) ("Index"), from the Friday immediately preceding the date of this proposal letter to the Friday immediately preceding the week in which the prepayment is to be made, (ii) dividing the decrease by 100, (iii) multiplying the result by the following described applicable "Premium Factor", and (iv) multiplying the product by the principal balance to be prepaid. If the Index is unchanged or has increased from the Friday immediately preceding the date of this proposal letter to the Friday immediately preceding the prepayment date, no prepayment premium shall be due. The Premium Factor shall be the amount shown on the following chart for the month in which prepayment occurs:
NUMBER OF MONTHS REMAINING YEARS FACTOR 240 - 229 (20) .094 228 - 217 (19) .090 216 - 205 (18) .085
204 - 193 (17) .081 192 - 181 (16) .076 180 - 169 (15) .072 168 - 157 (14) .067 156 - 145 (13) .063 144 - 133 (12) .058 132 - 121 (11) .053 120 - 109 (10) .049 108 - 97 (9) .044 96 - 85 (8) .039 84 - 73 (7) .035 72 - 61 (6) .030 60 - 49 (5) .025 48 - 37 (4) .020 36 - 25 (3) .015 24 - 13 (2) .010 12 1 (1) .005
GE Capital may elect to accelerate the loan at any time after BORROWER's default, in which event BORROWER shall, subject to the terms of the promissory note, be obligated to pay a prepayment premium equal to the amount determined in accordance with the foregoing schedule. No prepayment premium shall be payable with respect to condemnation awards or insurance proceeds from fire or other casualty which GE CAPITAL applies to prepayment, nor with respect to BORROWER's prepayment of the loan in full during the last three (3) months of its term unless an event of default has occurred and remains uncured. Borrower shall also receive language that permits pre-payment at any time subject to predetermined minimum fees plus yield maintenance. ASSUMABILITY: Borrower shall receive loan documents that include a right to assumability at terms and conditions acceptable to GE Capital, in its reasonable discretion, which shall permit a sale of the property with assumption of debt to a qualified borrower for a fee of 1%. This right shall continue with the loan documents of the new borrowing entity, if any. NON-UTILIZATION FEE: In the event BORROWER fails to borrow substantially all of the Loan Amount as reasonably determined by GE CAPITAL, then BORROWER shall pay GE CAPITAL a non-utilization fee unless such failure to borrow is due solely to the breach by GE CAPITAL of its commitment hereunder. The non-utilization fee will equal 9.4% of the Loan Amount for every 1% (or pro rata fraction of 1%) decrease in the weekly average yield of 10-Year U.S. Treasury Constant Maturities from the Friday immediately preceding the date of this proposal letter to the Friday immediately preceding the earlier of (a) the date GE CAPITAL cancels any commitment pursuant to the terms thereof, or (b) the Loan Closing Date as extended if applicable. The non-utilization fee is in addition to and not in substitution for any claim GE CAPITAL may have against the Deposit or any other fee paid by BORROWER. INSURANCE: BORROWER, at its own expense, will provide property, rental loss (or business interruption, as appropriate), liability and other insurance in such amounts as GE CAPITAL may from time to time require. In flood or earthquake hazard areas, GE CAPITAL may require flood or earthquake insurance. All insurance policies must be in accordance with GE CAPITAL's insurance requirements and shall include any endorsements which GE CAPITAL may reasonably require. EXPENSES: BORROWER shall pay all out-of-pocket costs associated with the loan, including (without limitation) a site inspection/postage fee of $500.00 pet site, the fees and costs of GE CAPITAL's special counsel, the cost of any environmental audits, the fees of the consulting engineer, appraisal costs, any loan, escrow, recording and transfer fees and taxes, title charges, survey costs, realty tax service fee, and all other out-of-pocket costs incurred by GE CAPITAL in connection with the loan (such costs not to include GE CAPITAL's costs of internal document preparation, if any), whether the loan is closed or not. IMPORTANT: IN NEGOTIATING AND DOCUMENTING THIS LOAN, GE CAPITAL HAS NOT ACTED, AND WILL NOT BE ACTING, AS BORROWER'S REPRESENTATIVE. BECAUSE GE CAPITAL'S AND BORROWER'S RESPECTIVE INTERESTS IN THIS LOAN DIFFER, GE CAPITAL RECOMMENDS THAT BORROWER CONSIDER RETAINING ITS OWN LEGAL COUNSEL IN CONNECTION WITH THIS LOAN. DEPOSIT: Upon acceptance of this proposal, BORROWER shall pay GE CAPITAL a non-interest bearing Deposit in the amount of 1% of the Loan Amount or $20,000.00, whichever is greater. This Deposit will be returned to BORROWER, less expenses referred to above, (i) in the event GE CAPITAL does not approve this transaction, or (ii) upon loan closing, which includes receipt of all properly executed documentation, which documentation shall include the final policy of title insurance and recorded originals of all loan documents; or (iii) in the event that GE CAPITAL and BORROWER fail to agree upon a material provision of the loan documentation for this transaction, or (iv) upon GE CAPITAL's termination of this transaction because of a material adverse change in BORROWER's, GUARANTORS' (if any), or credit tenants' (if any) financial condition; or (v) upon the breach by GE CAPITAL of the commitment, if any, issued as a result of this proposal. If this transaction is not fully closed by Loan Closing Date for any other reason, then GE CAPITAL will retain the Deposit as liquidated damages. LOAN CLOSING DATE: GE CAPITAL's obligation to fund under this proposal will terminate on April 30, 2001. Notwithstanding the foregoing, BORROWER shall have one (1) option to extend the expiration date of any commitment for an additional sixty (60) days upon written request by BORROWER and payment of an extension fee of .50% of the Loan Amount on or before April 30, 2001. The extension fee would be in addition to any other Loan Fee or Forward Commitment Fee and would be due and payable upon the exercising of such extension by BORROWER.. OTHER CONDITIONS: This proposal is based upon preliminary information supplied by BORROWER. In the event that GE CAPITAL, based upon its review and in its sole discretion, approves this transaction, a commitment letter will be issued setting forth the terms and conditions of the transaction. MATERIAL ADVERSE CHANGE: In the event that there shall be a material adverse change in BORROWER's, GUARANTORS' (if any), or credit tenants' (if any) financial condition prior to loan closing, GE CAPITAL shall have the right and option to terminate its obligations hereunder without thereby incurring any liability to BORROWER. BID EXPIRATION: This bid expires on January 23, 2001 if not accepted by BORROWER, You may indicate your acceptance of this proposal by executing the enclosed copy of this letter and returning it together with the Deposit and the requested financial statements and Property information. By accepting this proposal, BORROWER acknowledges that this letter contains the entire proposal (superseding all previous representations and agreements, either oral or written) and that there are no promises, agreements or understandings outside of this letter. BORROWER further acknowledges that this proposal is not intended and shall not be construed as a commitment by GE CAPITAL and that any commitment is subject to GE CAPITAL's review and written approval. We appreciate the opportunity to submit this proposal. If you have any questions or require further information, please feel free to contact us. Respectfully, GENERAL ELECTRIC CAPITAL BUSINESS ASSET FUNDING CORPORATION /s/ Debbie Orloff - --------------------------- Debbie Orloff Account Executive The above terms and conditions are hereby agreed to and accepted this 22nd day of January 2001. GE Capital is ___X___ is not ________ hereby authorized to order the appraisal, environmental assessment, and engineering reports covering the Property upon acceptance of Proposal. To Be Determined entity (May also be Uno Restaurant Corp.), a limited partnership or other entity. By: /s/ Aaron Spencer ---------------------------------------- Title: ___________________________________ General Electric Capital Business Asset Funding Corporation 10900 NE 4th Street, Suite 500, Bellevue, WA 98004 Mailing Address: C-97550, Bellevue, WA 98009-7550 425 451-0090 March 27, 2001 Mr. Aaron Spencer Chairman Uno Restaurant Corporation 100 Charles Park Road Boston, MA 02132 RE: Acquisition of two Uno's restaurant locations in Chicago, IL Dear Aaron: We are pleased to advise you that our real estate financing proposal dated January 11, 2001 has been credit approved. All terms and conditions of the proposal are as stated, with the following exceptions, and remain subject to documentation satisfactory to you and GE Capital. BORROWER: Aaron Spencer, or a real estate holding entity to be named later GUARANTORS; Aaron if the BORROWER is a real estate holding company LOAN AMOUNT $4,050,000 ASSUMABILITY: BORROWER shall receive loan documents that include a right to assumability at terms and conditions acceptable to GE Capital, in its reasonable discretion, which shall permit a sale of the properties with assumption of debt to a qualified borrower for a fee of 1%. This right shall continue with the loan documents of the new borrowing entity, if any. The 1% assumability fee shall be waived in the event that the properties are sold and the Mortgage is assigned to Uno Restaurant Corporation. This one time option expires on December 31, 2001. SPECIAL CONDITIONS: Cash Flow Covenant: Cash Flow, as measured each fiscal year, must equal or exceed 120% of the BORROWER'S (Aaron Spencer or a real estate holding entity to be named later) aggregate debt service (i.e., principal and interest) and capital lease payments paid in the applicable fiscal year, Cash Flow is defined as the BORROWER'S net income, plus interest expense, plus depreciation and amortization expense, plus or minus other non-cash adjustments to net income (if any), less increases in officer or shareholder loans receivable, less dividends or distributions not otherwise expensed on the BORROWER'S income statement. BORROWER will authorize loan payment by Automated Clearing House ("ACH") account. Funding contingent upon assignment of lease. Funding contingent upon receipt and acceptable review of lease. Lease to have a minimum term of 20 years. Funding contingent upon receipt and acceptable review of personal financial information for BORROWER and, if applicable, GUARANTOR. Funding contingent upon receipt and acceptable review of MAI appraisal. Funding contingent upon receipt and acceptable review of Phase 1 Environmental Site Assessment. Loan to be cross-defaulted with all other GE CAPITAL BAF debt of the BORROWER. Funding contingent upon receipt and acceptable review of 3 years sales information and 1 year statement of profit/loss for the two Uno's restaurants taken as security. COMMITMENT EXPIRATION: This commitment shall expire on April 30, 2001 if not accepted by BORROWER prior thereto. Covenants and Conditions will be reviewed on an annual basis and removed as appropriate. All other terms and conditions of the proposal dated January 11, 2001 remain unchanged. You may indicate your acceptance of this proposal by executing this letter and returning it to my attention. If you have any questions regarding this matter, please feel free to contact me. Sincerely, /s/ David Skinner David Skinner Senior Credit Analyist Franchise Finance (425)450-3989 The above terms and conditions are hereby agreed to and accepted this 28th day of March 2001. By: /s/ Aaron Spencer Title: -------------------------- ---------------------- Aaron Spencer General Electric Capital Business Asset Funding Corporation 10900 NE 4th Street, Suite 500, Bellevue, WA 98004 Mailing Address: C-97550, Bellevue, WA 98009-7550 425 451-0090 April 5, 2001 Mr. Aaron Spencer Chairman Uno Restaurant Corporation 100 Charles Park Road Boston, MA 02132 RE: Acquisition of two Uno's restaurant locations in Chicago, IL. Dear Mr. Spencer, We are pleased to provide this amendment to our Real Estate Financing Commitment Letter for the Chicago, IL restaurants. The following will modify the corresponding sections in the Commitment Letter dated March 27, 2001. SPECIAL CONDITIONS: Cash Flow Covenant: Cash Flow, as measured each fiscal year, must equal or exceed 120% of the BORROWER'S (Aaron Spencer or a real estate holding entity to be named later) aggregate debt service (i.e., principal and interest) and capital lease payments paid in the applicable fiscal year. Cash flow is defined as the BORROWER'S net income before taxes, plus interest expenses, plus depreciation and amortization expense, plus or minus other non-cash adjustments to net income (if any), less increases in officer or shareholder loans receivable, less dividends or distributions not otherwise expensed on the BORROWER'S income statement. COMMITMENT EXPIRATION: This commitment shall expire on April 30, 2001 if not accepted by BORROWER prior thereto. All other terms and conditions of the Real Estate Financing Commitment Letter dated March 27, 2001 remain unchanged. You may indicate your acceptance of this commitment amendment by executing this letter and returning it to my attention. If you have any questions regarding this matter, please feel free to contact me. Sincerely, GE CAPITAL BUSINESS ASSET FUNDING /s/ David Skinner - --------------------------------- David Skinner Senior Credit Analyst 800-451-5505 x3989 The above terms and conditions are hereby agreed to and accepted this 6th day of April, 2001. By: /s/ Aaron Spencer ------------------------------- Aaron Spencer General Electric Capital Business Asset Funding Corporation 901 Warrenville Road, Suite 480, Lisle, IL 60532 630 724-1800, Fax: 630 724-1018 March 7, 2001 Mr. Aaron Spencer Chairman Uno Restaurant Corporation 100 Charles Park Road West Roxbury, MA 02132 Dear Mr. Spencer: General Electric Capital Business Asset Funding Corporation or its assigns ("GE Capital") is pleased to inform you that your request for mortgage financing has been approved subject to the usual terms, conditions, and remedies contained in GE Capital's customary loan documents for the state in which the Property is located, except as such customary forms may be modified to effect the following terms and conditions: BORROWER. To-Be-Determined-Entity, which will be owned and controlled by Mr. Aaron Spencer. The form of this organization will be acceptable to GE Capital. PROPERTY AND IMPROVEMENTS (BROCKTON, MA LOCATION). The loan will be secured by a first deed of trust or mortgage on Property and Improvements consisting of single-story, 38,000 square foot production plant ("Improvements"), located on approximately a 2.2 acre site commonly referred to as 180 Spark Street, Brockton, Plymouth County, Massachusetts, including any easements or rights of way serving the land and associated personal and intangible property (collectively, the "Property"). BORROWER shall furnish GE Capital with the exact legal description of the Property. The Property shall also secure the payment of any other indebtedness heretofore or hereafter extended by GE Capital to BORROWER. PROPERTY AND IMPROVEMENTS-(NORWOOD, MA LOCATION). The loan will be secured by a first deed of trust or mortgage on Property and Improvements consisting of two-story, 12,000 square foot research and development center ("Improvements"), located on a 54,770 square feet site commonly referred to as 44 Industrial Way, Norwood, Norfolk County, Massachusetts, including any easements or rights of way serving the land and associated personal and intangible property (collectively, the "Property") BORROWER shall furnish GE Capital with the exact legal description of the Property The Property shall also secure the payment of any other indebtedness heretofore or hereafter extended by GE Capital to BORROWER. LOAN AMOUNT. $2,250,000.00; 90% of the purchase price or cost to construct (which cost specifically excludes developer's overhead and any leasing fees not paid to independent third parties); or 75% of the property's appraised fee simple estate value (which appraisal shall be ordered by and subject to GE Capital's approval as outlined further herein); whichever is less. INTEREST RATE. 7.95% per annum. PAYMENT SCHEDULE. Interest only shall be paid in advance for the month in which loan closing occurs followed by 239 principal and interest payments in the amount of $18,749.95 due and payable, in arrears, subject to corresponding adjustment for any change in the Loan Amount, commencing on the first day of the second month following the date of loan closing and every succeeding month thereafter, with all unpaid principal and interest due on the 240th installment date. Amortization of the loan will be based on a 20-year schedule. Interest shall be computed on the basis of a 360-day year composed of twelve 30-day months. LOAN FEE. 1% of the Loan Amount to be paid at loan closing. NONUTILIZATION FEE. In the event BORROWER fails to borrow substantially all of the Loan Amount as reasonably determined by GE Capital, then BORROWER shall pay GE Capital a nonutilization fee unless such failure to borrow is due solely to the breach by GE Capital of its commitment hereunder. The nonutilization fee will equal 9.4% of the Loan Amount for every 1% (or pro rata fraction of 1%) decrease in the weekly average yield of 10-Year U.S. Treasury Constant Maturities from Friday, January 5, 2001 to the Friday immediately preceding the earlier of (a) the date GE Capital cancels this commitment pursuant to the terms hereof, or (b) the Expiration Date Of Commitment set forth below, as extended if applicable. The nonutilization fee is in addition to and not in substitution for any claim GE Capital may have against the Deposit or any other fee paid by BORROWER. PREPAYMENT PROVISIONS. Upon not less than thirty (30) days' advance written notice to GE Capital at any time after the tenth (10th) anniversary of the due date of the first monthly principal and interest payment due under the promissory note, and upon payment of a prepayment premium, BORROWER shall have the right to prepay all, but not less than all, of the outstanding balance of the loan on any regularly scheduled principal and interest payment date, The prepayment premium shall be determined by (i) Calculating the decrease (expressed in basis points) in the current weekly average yield of 10-Year U .S. Treasury Constant Maturities as published in Federal Reserve Statistical Release H.15 (519) ("Index"), from Friday, January 5, 2001 to the Friday immediately preceding the week in which the prepayment is made, (ii) dividing the decrease by 100, (iii) multiplying the result by the following described applicable "Premium Factor", and (iv) multiplying the product by the principal balance to be prepaid. If the Index is unchanged or has increased from Friday, January 5, 2001 to the Friday immediately preceding the prepayment date, no prepayment premium shall be due. The Premium Factor shall be the amount shown on the following chart for the month in which prepayment occurs: NUMBER OF MONTHS REMAINING YEARS FACTOR 240 - 229 (20) .094 228 - 217 (19) .090 216 - 205 (18) .085 204 - 193 (17) .081 192 - 181 (16) .076 180 - 169 (15) .072 168 - 157 (14) .067 156 - 145 (13) .063 144 - 133 (12) .058 132 - 121 (11) .053 120 - 109 (10) .049 108 - 97 (9) .044 96 - 85 (8) .039 84 - 73 (7) .035 72 - 61 (6) .030 60 - 49 (5) .025 48 - 37 (4) .020 36 - 25 (3) .015 24 - 13 (2) .010 12 1 (1) .005
GE Capital may elect to accelerate the loan at any time after BORROWER's default, in which event BORROWER shall, subject to the terms of the promissory note, be obligated to pay a prepayment premium equal to the amount determined in accordance with the foregoing schedule. No prepayment premium shall be payable with respect to condemnation awards or insurance proceeds from fire or other casualty which GE Capital applies to prepayment, nor with respect to BORROWER's prepayment of the loan in full during the last three (3) months of its term unless an event of default has occurred and remains uncured. RECOURSE. GE Capital shall have full recourse against BORROWER and it's general partners, if any, for any failure to make payments as and when due on the promissory note and for the breach of any of the representations, warranties, indemnities and covenants contained in the loan documents. GUARANTY. The loan and all of BORROWER's obligations in connection with the loan (including without limitation BORROWER's obligations under the loan documents and any certificate and indemnity agreement regarding hazardous substances or environmental indemnity agreement) will be unconditionally and irrevocably guaranteed by Mr. Aaron Spencer. DEFAULT RIGHTS. In the event of default, and at GE Capital's sole option at any time thereafter, BORROWER shall pay in addition to each monthly payment on the loan one-twelfth of the annual real estate taxes, assessments, insurance premiums, water and sewer rates, and other charges (and ground rents if applicable) payable with respect to the Property and Improvements (as estimated by GE Capital in its sole discretion), to be held by GE Capital without interest to BORROWER, for the payment of such obligations. GE Capital shall be entitled to collect a late charge of five percent (5.00%) of any payment not paid by the tenth (10th) day of the month in which it is due, or the highest late charge permitted by law, whichever is less. Upon the occurrence of any of the events of default outlined in the loan documents, GE Capital shall have the option to declare the entire amount of principal and accrued interest thereon due under the promissory note immediately due and payable, and GE Capital may exercise any of its rights under the promissory note and any document executed or delivered therewith, After acceleration or in the event of nonpayment of the final installment, BORROWER shall pay interest on the outstanding principal balance at the rate of five percent (5.00%) per annum above Chase Manhattan Bank's prime interest rate in effect from time to time, or fifteen percent (15.00%) per annum, whichever is higher, provided such interest rate shall not exceed the maximum interest rate permitted by law. The Default Rights stated herein are not exclusive and such other rights as GE Capital deems appropriate shall be included in the loan documents. Without limitation of the foregoing, the loan documents shall include cross default provisions acceptable to GE Capital. APPRAISAL. As a condition of loan closing, GE Capital shall order a complete, narrative appraisal report of the Property and Improvements addressed to GE Capital and prepared by an MAI certified appraiser in conformance with the guidelines and recommendations set forth in the Uniform Standards of Professional Appraisal Practice (USPAP) and the requirements of the Code of Professional Ethics and Standards of Professional Appraisal Practice of the Appraisal Institute. In addition to the foregoing requirements, whenever the Income Approach is utilized by the appraiser, it shall include a direct capitalization analysis as well as a discounted cash flow analysis. The report shall also provide a final estimate of value based on the property's fee simple estate. Both the report and the appraiser shall be acceptable to GE Capital. LEASING. All present and future tenants and leases, if any, shall be subject to GE Capital's approval. Although such leases may have been received for review by GE Capital prior to the date hereof, and although GE Capital may have conducted a preliminary review and made comments to BORROWER or BORROWER's counsel with respect thereto, such leases remain subject to GE Capital's approval based on a complete review of such leases by GE Capital's outside counsel following the date hereof. All tenants must execute a subordination and estoppel agreement in form and substance acceptable to GE Capital. \ TITLE. Borrower shall furnish GE Capital with an ALTA Loan Policy of Title Insurance, or the equivalent thereof if an ALTA policy is unavailable, insuring GE Capital's interest as a first lien and including an ALTA Extended Coverage Endorsement, an Address and Improvement Type Endorsement, and such other endorsements as GE Capital may require. The insurer, the form of title insurance policy and endorsements, and any exceptions to coverage shall be subject to GE Capital's approval. SURVEY. GE Capital shall be furnished with a current ALTA survey satisfactory to GE Capital by a registered public surveyor prepared and certified in accordance with GE Capital's survey requirements. CONSULTING ENGINEER. GE Capital will select an independent consulting engineer to make an inspection of the Property and Improvements to insure that the Property and Improvement's condition is satisfactory to GE Capital. GE Capital shall have the right to require reasonable modification or repairs to the Improvements based upon the recommendations of the consulting engineer. Neither GE Capital nor the consulting engineer shall have any responsibility whatsoever to any person for design/structural failure or other architectural or engineering inadequacies. HAZARDOUS MATERIALS. As a condition of loan closing, GE Capital shall order an environmental assessment for the Property which shall include a complete investigation concerning the existence of hazardous materials, substances or waste products on or about the Property, the past or present discharge, disposal, release or escape of any such substances, and a regulatory search of all applicable federal, state and local reporting agencies, all consistent with ASTM Standard E 1527-93 (or any successor thereto published by ASTM) and other customary and commercial practice. GE Capital understands BORROWER may occasionally use materials in the ordinary course of its business that might be defined as hazardous materials, and GE Capital consents to the presence of such materials so long as they are used and handled in accordance with all applicable laws, rules and regulations. SITE INSPECTION. GE Capital's obligation to fund the loan shall be conditioned upon an on-site inspection by a representative of GE Capital and GE Capital's approval of the site, general location, and if the Improvements are existing, quality and maintenance thereof. LEGAL COMPLIANCE AND UTILITIES. GE Capital shall be furnished with satisfactory proof of compliance with any applicable laws and regulations including particularly any licensing, zoning, or parking requirements and with a copy of the unconditional, permanent certificate(s) of occupancy. GE Capital shall also be furnished with satisfactory evidence that all utilities necessary for the full use and enjoyment of the Property are available to the Property, and that water and sanitary sewer systems are provided to the Property and maintained by governmental authorities or by applicable public utilities. LEGAL COUNSEL. Special counsel of GE Capital's selection will be used for the drafting of documents and other attorney's services relating to the transaction, BORROWER's counsel must deliver to GE Capital a legal opinion satisfactory to GE Capital and its counsel, which opinion shall include, but not be limited to, a confirmation of the legal validity and enforceability of the loan. All legal matters shall be subject to approval by GE Capital. All fees and expenses of GE Capital's special counsel shall be paid by BORROWER regardless of whether or not the loan actually closes. IMPORTANT: IN NEGOTIATING AND DOCUMENTING THIS LOAN, GE CAPITAL HAS NOT ACTED, AND WILL NOT BE ACTING, AS BORROWER'S REPRESENTATIVE. BECAUSE GE CAPITAL'S AND BORROWER'S RESPECTIVE INTERESTS IN THIS LOAN DIFFER, GE CAPITAL RECOMMENDS THAT BORROWER CONSIDER RETAINING ITS OWN LEGAL COUNSEL IN CONNECTION WITH THIS LOAN. INSURANCE. BORROWER, at its own expense, will provide property, rental loss (or business interruption, as appropriate), liability and other insurance in such amounts as GE Capital may from time to time require. In flood or earthquake hazard areas, GE Capital may require flood or earthquake insurance. All insurance policies must be in accordance with GE Capital's insurance requirements and shall include any endorsements which GE Capital may reasonably require. DUE ON SALE, CHANGE OF TITLE, OR ADDITIONAL FINANCING. The Loan Documents shall contain a due on sale clause with respect to any direct or indirect transfer of all or any portion of the Property or of any interest in BORRQWER, without GE Capital's prior written consent, which consent shall be subject to GE Capital's sole discretion. Any approved transfer shall be subject to the payment of a transfer fee of 1% of the outstanding loan balance at the time of such approved transfer. No subordinate liens, encumbrances or mortgages on the Property shall be permitted, including leasehold mortgages by any tenant. ASSUMABILITY. The Loan Documents shall include a right to assumability at terms and conditions acceptable to GE Capital, in its reasonable discretion, which shall permit a sale of the Property and assignment of the Mortgage from BORROWER to Uno Restaurant Corporation with a waiver of the 1% Assumability Fee. This one time option expires on December 31, 2001. Subsequent to that date. assumption of debt to a qualified borrower will be subject to the Assumability Fee of 1%. ANNUAL STATEMENTS. BORROWER will furnish to GE Capital, and will cause any guarantor of BORROWER's obligation to furnish to GE Capital on request, within 90 days after the close of its fiscal year (i) annual balance sheet and profit and loss statements prepared in accordance with generally accepted accounting principles and practices consistently applied and, if GE Capital so requires, accompanied by the annual audit report of an independent certified public accountant reasonably acceptable to GE Capital, and (ii) an annual operating statement, together with a complete rent roll and other supporting data reflecting all material information with respect to the operation of the Property and Improvements, and (iii) all other financial information and reports that GE Capital may from time to time reasonably request, including, if GE Capital so requires, income tax returns of BORROWER and any guarantor of BORROWER's obligation hereunder, and financial statements of any tenant designated by GE Capital. Notwithstanding the aforementioned, GE Capital shall require receipt and satisfactory review of a personal financial statement and 1999 income tax return of Mr. Aaron Spencer (GUARANTOR), prior to funding. FINANCIAL RESPONSIBILITY. GE Capital shall have the right to terminate this commitment in the event GE Capital determines, in GE Capital's sole judgment, that BORROWER, any principal of BORROWER, any guarantor, any credit tenant or any guarantor of any credit tenant's obligations 's is not "financially responsible" at the time of loan closing. "Financially responsible" shall mean: having no material adverse change in financial condition from the financial condition previously disclosed to GE Capital; having no outstanding defaults, liens, court actions, or liabilities (including contingent liabilities) which could, in the opinion of GE Capital, result in insolvency or bankruptcy, and not "insolvent" or a "debtor" within the meaning of the Bankruptcy Code. CANCELLATION. GE Capital may cancel this commitment prior to closing if GE Capital discovers any facts impairing the Property or any of the other security offered, if GE Capital discovers any fact not previously disclosed to GE Capital with respect to BORROWER, any guarantor, any credit tenant or any guarantor of any credit tenant's obligations which in GE Capital's judgment, would have caused GE Capital to refuse to issue this commitment, or if GE Capital discovers that any of the financial information or financial statements submitted to GE Capital in connection with this transaction were not true, correct and complete. Upon any cancellation of this commitment pursuant to this section, GE Capital will retain the Deposit described below as liquidated damages. ASSIGNMENT. This commitment shall not be assignable by BORROWER. Any change in the ownership interests in BORROWER previously disclosed to GE Capital shall be considered an assignment. BROKERAGE. GE Capital shall not be required to pay any brokerage fee or commission arising from this commitment, and the BORROWER agrees to defend, indemnify and hold GE Capital harmless against any and all expenses, liabilities, and losses arising from such claims in connection therewith, including payment of reasonable attorney's fees. COSTS PAYABLE BY BORROWER. BORROWER shall pay all out of pocket costs associated with the loan, including (without limitation) a site inspection/postage fee of $500 per site, the fees and costs of special counsel, the cost of all environmental engineering reports, the fees of the consulting engineer, the cost of the appraisal, any loan. escrow, recording and transfer fees and taxes, title charges, survey costs, realty tax service fee, and all other out-of-pocket costs incurred by GE Capital in connection with the loan (such costs not to include GE Capital's costs of internal document preparation, if any), whether the loan is closed or not. WIRE TRANSFER DEADLINE. All loans funded by GE Capital are subject to a wire transfer deadline of 12:00 p.m. Pacific Time. DEPOSIT. BORROWER has previously paid GE Capital a NONINTEREST bearing Deposit in the amount of $52,500.00. This Deposit will be returned to BORROWER, less all costs incurred by GE Capital in connection with the loan: (i) upon loan closing, which includes receipt of all properly executed documentation, which documentation shall include the final Policy of Title Insurance and recorded originals of all recorded Loan Documents; or (ii) in the event that GE Capital and BORROWER fail to agree upon a material provision of the loan documentation for this transaction which is not already agreed upon herein, (iii) upon GE Capital's termination of this transaction pursuant to the section entitled "Financial Responsibility", or (iv) upon the breach by GE Capital of its commitment hereunder. If this transaction is not fully closed by the Expiration Date of Commitment for any other reason, then GE Capital will retain the Deposit as liquidated damages. PRIOR NEGOTIATIONS. This commitment constitutes the entire agreement between GE Capital and BORROWER relating to the loan. Any and all prior proposals, commitments, agreements, representations, and warranties made by GE Capital, whether oral or written, are deemed superseded hereby. No extension, amendment, or waiver of this commitment shall be valid or enforceable unless it is made in writing and signed by both GE Capital and BORROWER. IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY' ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT, COMMITMENT ACCEPTANCE. Subject to the terms and conditions herein stated, this commitment is an offer that may be accepted by you until MARCH 15, 200. Effective acceptance requires actual receipt by GE Capital of a fully executed counterpart of this commitment letter, without any changes thereto, on or before such date. EXPIRATION DATE OF COMMITMENT. This commitment will expire on APRIL 30, 2001, GE Capital will not be obligated to disburse the funds after this date. Notwithstanding the foregoing, and subject to GE Capital's approval, BORROWER shall have one option to extend the expiration date of this commitment for an additional sixty (60) days upon written request by BORROWER and payment of an extension fee of 50% of the Loan Amount on or before APRIL 30, 2001. The extension fee is in addition to any other Loan Fee or Forward Commitment Fee and is due and payable upon the exercising of such extension by BORROWER and is nonrefundable. GENERAL ELECTRIC CAPITAL BUSINESS ASSET FUNDING CORPORATION BY: /s/ Richard J. Pondel --------------------------------- Richard J Pondel Regional Risk Manger The undersigned hereby accepts the foregoing commitment letter and agrees that it will comply with all of the terms and conditions herein. BORROWER: By: /s/ Aaron Spencer ---------------------------------------- Title: ____________________________________ Date Accepted: 3/23/01 ----------------------------- BORROWER's Federal I.D. No.: ______________ -----END PRIVACY-ENHANCED MESSAGE-----