EXHIBIT 10.4
April 1, 2003
UAG Connecticut I, LLC
2555 Telegraph Road
Bloomfield Hills, MI 48302
UAG Realty, LLC Automotive Group Realty, LLC
2555 Telegraph Road 2555 Telegraph Road
Bloomfield Hills, MI 48302 Bloomfield Hills, MI 48302
UAG Connecticut, LLC Noto Holdings LLC
2555 Telegraph Road 342 West Putnam Avenue
Bloomfield Hills, MI 48302 Greenwich, CT 06838
RE: First Amended and Restated Limited Liability Company Agreement (the
"Agreement") dated effective March 1, 2001, by and between Noto
Holdings LLC ("Noto") and UAG Connecticut, LLC ("UAG") relating to the
ownership of limited liability company membership interests of UAG
Connecticut I, LLC (the "Company").
Gentlemen:
In connection with the captioned Agreement, and to induce Noto to enter
into and complete the transactions contemplated by the captioned Agreement,
Automotive Group Realty, LLC, a wholly owned subsidiary of Penske Corporation
("AGR"), UAG, UAG Realty, LLC ("UAG Realty") and the Company have all agreed to
execute and deliver to Noto this letter setting forth certain understandings
with respect to the real property underlying the business operations of the
Company and its subsidiaries.
AGR currently holds title to the real property described on Schedule
"A" attached hereto and all improvements thereon, along with any other real
property acquired by AGR and used in connection with the business of the
Company, (collectively referred to herein as the "Property" or "Properties").
The values reflected on Schedule A represent the investment in the properties
made by AGR as of the date hereof (such amounts being referred to herein as the
"Current Value"). Schedule "A" shall be amended and adjusted from time to time
in order to reflect any additional investment by AGR in a Property or any other
property used in connection with the Company's business. The Properties are
currently leased by UAG Realty from AGR pursuant to a Lease Agreement dated
September 29, 2000, as amended and as may be amended from time to time (the
"Lease"), and the Company subleases the Properties from UAG Realty, LLC.
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In connection with the execution of this letter, UAG and Noto have
entered into the Agreement which, among other things, serves to convey a
membership interest in the Company to Noto. AGR intends to convey to Noto a
twenty percent (20%) share of appreciation in the Properties in exchange for
Noto's guarantee of twenty percent (20%) of the rent payments due under the
Lease, on the terms and conditions set forth below.
So long as Noto is not in default of its obligations under the
Agreement and UAG Realty is not in default of its obligations under the Lease,
upon the sale and transfer of all or any of the Properties by AGR, AGR shall pay
to Noto promptly upon completion of any such sale or transfer an amount equal to
twenty percent (20%) of the positive difference between (i) the actual proceeds
received by AGR on the date of the sale or transfer of the Property as sales
price, net of all sales related costs including, but not limited to, transfer
taxes, broker commissions and title policies, of the Property or Properties sold
or otherwise transferred by AGR (the "Net Sale Proceeds") and (ii) the Current
Value with respect to each Property sold or otherwise transferred by AGR. If the
amount calculated pursuant to the immediately preceding sentence is less than
zero, then Noto agrees to pay to AGR an amount equal to twenty percent (20%) of
the difference between (i) the Current Value with respect to each Property sold
or otherwise transferred by AGR, and (ii) the Net Sale Proceeds; provided,
however, that the foregoing obligations of Noto may only be satisfied from
proceeds from the Collateral (as defined below), if any, and except for the
Collateral or proceeds therefrom AGR shall have no recourse against Noto or any
other person for the foregoing obligations of Noto.
In consideration for the interest conveyed herein, Noto hereby agrees
to guarantee to AGR the payment of twenty percent (20%) of the monthly payment
obligation of Base Annual Rent (as defined in the Lease) made by UAG Realty in
accordance with the terms of the Lease as such Base Annual Rent may be increased
or decreased from time to time. This guarantee shall terminate with respect to
each Property upon the sale and transfer of that Property by AGR. This guaranty
is secured by Noto's limited liability ownership interest in the Company (the
"Collateral") which is pledged to AGR in accordance with a Pledge Agreement of
even date herewith. UAG Realty will use its best commercial efforts to make
timely lease payments. AGR shall copy Noto on any written notice of an Event of
Default (as defined in the Lease) provided to UAG Realty under the Lease with
respect to all or any of the Properties and agrees to provide Noto with an
opportunity to cure such default on the same terms that the Lease permits UAG
Realty the opportunity to cure an Event of Default.
The parties acknowledge that the amount of the payments made under the
Lease to AGR has been structured to provide AGR with sufficient funds to pay the
interest only on its mortgage loan relating to the Property together with a
reasonable sum above such interest costs to reimburse AGR for expenses incurred
in connection with its administration of the Property. While this Agreement is
in effect, Noto shall have the right to participate in any net refinancing
proceeds relating to the Property on the twenty percent (20%) basis
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set forth above, provided that Noto agrees to apply its guarantee to any
additional amount of Lease payments made as a result of the refinancing.
The obligations of AGR and Noto hereunder shall terminate upon the
expiration of the term of the Lease, as extended from time to time.
This agreement shall not serve to eliminate, modify or alter the
obligations of UAG Realty under the Lease and UAG Realty hereby reaffirms its
obligations thereunder.
All capitalized terms not defined herein shall have the meaning
ascribed to them by the Agreement.
This letter agreement constitutes the entire agreement among the
parties with respect to the subject matter hereof, and supersedes any prior
agreement or understanding among them including, but not limited to, a certain
letter agreement dated March 1, 2001, with respect to such subject matter.
UAG CONNECTICUT I, LLC AUTOMOTIVE GROUP REALTY, LLC
/s/ Robert H. Kurnick, Jr. /s/ Aaron Michael
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By: Robert H. Kurnick, Jr. By: Aaron Michael
Its: Assistant Secretary Its: Vice President
UAG REALTY, LLC NOTO HOLDINGS LLC
/s/ Robert H. Kurnick, Jr. /s/ Lucio A. Noto
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By: Robert H. Kurnick, Jr. By: Lucio A. Noto
Its: Assistant Secretary Its: Member
UAG CONNECTICUT, LLC
/s/ Robert H. Kurnick, Jr.
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By: Robert H. Kurnick, Jr.
Its: Assistant Secretary
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