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Exhibit (b)(1)
PW REAL ESTATE INVESTMENTS INC.
1285 Avenue of the Americas
New York, New York 10019
July 5, 2000
Radiant Partners, LLC
551 Fifth Avenue
Suite 1416
New York, NY 10017
Attention: Mr. Daniel Friedman
Dear Mr. Friedman:
PW Real Estate Investments Inc. ("Lender") is pleased to present the
terms and conditions of its commitment (the "Commitment") to provide mezzanine
financing (the "Mezzanine Loan") to Radiant Partners, LLC, Daniel Friedman, Anne
Zahner and David Schonberger (collectively, the "Client") for the acquisition of
the First Union Real Estate Equity and Mortgage Investments ("FUR") real estate
portfolio comprised of the 11 properties listed on Exhibit A attached hereto
(collectively, the "Properties"). Upon the Client's acceptance of these terms
and conditions in the manner provided below, this letter (this "Commitment
Letter") will serve as Lender's commitment to provide the financing, and the
Client's obligation to accept the financing, subject to and in accordance with
the following:
Borrower: A newly created, special purpose, bankruptcy remote entity
or entities acceptable to Lender and owned and controlled by
the Client and the providers of equity referred to below
("Newco"). Newco will own, directly or indirectly, all
right, title, and interest in the entity or entities, that
own the Properties. After the execution and delivery of this
Commitment Letter, the Client shall promptly propose an
equity structure for Newco and its parents and subsidiaries
(notwithstanding the fact that the specific identity of any
of such entities is then undetermined).
Lender: PW Real Estate Investments Inc.
Loan Amount: The maximum principal amount funded under the Mezzanine Loan
(the "Mezzanine Loan Amount") will be the lesser of (a)
$31.4 million and (b) 81% of the total consideration for the
Properties (the "Purchase Price"), which currently is $205.0
million pursuant to that certain Letter
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Agreement (the "Purchase Letter") dated June 20, 2000
between Radiant Partners, LLC and FUR.
Collateral: The proposed loan will be secured by a pledge of Newco's
equity interests in the entities that own the Properties. In
addition, the Parent Guaranty (as defined below) will be
secured by a pledge of the equity interests in Newco held by
the parent entity of Newco. The Collateral and the
Properties will be free and clear of all liens, claims and
encumbrances of any kind or nature whatsoever other than
those approved by Lender. Lender's obligations under this
Commitment Letter are also conditioned on Lender receiving
title insurance satisfactory in all respects to Lender
insuring Lender's indirect interests in the Properties,
subject only to matters acceptable to Lender.
Use of Proceeds: The proceeds from the Mezzanine Loan will be used by Newco
to acquire the Properties, and for such related purposes as
Lender may approve,
Term: The Mezzanine Loan will mature two years from the date of
origination, subject to Newco's right to extend the term for
six months upon satisfaction of the Extension Conditions
described below.
Extension
Conditions: The six month extension option will be conditioned at the
time of the extension upon the following conditions (the
"Extension Conditions"): (i) no event of default or event
which, with the giving of notice or the passage of time
would constitute an event of default, under the Mezzanine
Loan then exists or is then imminent, (ii) Newco's request
of the extension is neither less than 60 days nor more than
120 days prior to the originally scheduled maturity date,
(iii) Newco pays an extension fee in the amount of 1.50% of
the then outstanding principal amount of the Mezzanine Loan,
(iv) neither the LTC nor the LTV (both as defined below) are
more than 60%, (v) the DSCR (as defined below) is at least
1.50x, (vi) at least 50% of the Mezzanine Loan Amount has
been amortized prior to the originally scheduled maturity
date and (vii) Newco executes and delivers to Lender a
certificate, remaking all of Newco's closing representations
and warranties, as of the date of the extension.
Interest Rate: The Mezzanine Loan will bear interest at a per annum rate
equal to 15% (the "Interest Rate").
Interest Payments: Interest payments will be paid monthly on the 15th day of
each month, in arrears, in respect of the period ending on
the day immediately preceding the payment date. Interest
will be calculated on an actual/360 basis.
Amortization: 100% of the Net Cash Flow will be used monthly to amortize
the Mezzanine Loan. "Net Cash Flow" is defined as the net
operating
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income of the Properties less payment of debt service on the
Properties. Net Cash Flow will not include the payment of
any (a) third-party Property disposition-related fees (other
than fees within the 6.0%, 4.5% and 3.0% allowances for
closing costs described below in this section), or (b) asset
management fees and corporate overhead of Newco and its
Subsidiaries above (i) $2,500,000 per annum in the first
year following the closing of the Mezzanine Loan, (ii)
$2,000,000 per annum in the second year following the
closing of the Mezzanine Loan and (iii) $1,500,000 per annum
in the third year following the closing of the Mezzanine
Loan. Additionally, 100% of the Net Capital Event Proceeds
of the Properties (in the case of a sale of a Property,
pursuant to the Release requirements, defined below), will
be used to amortize the Mezzanine Loan. "Net Capital Event
Proceeds" for the Properties known as Two Rivers Business
Center, Printer's Alley Garage, Long Street Garage, and West
3rd Street Parking Lot are equal to gross sales proceeds and
gross refinancing proceeds for such Properties less a
maximum of 6% for reasonable closing costs. "Net Capital
Event Proceeds" for the Properties known as Westgate
Shopping Center and 5th & Marshall Garage are equal to gross
sales proceeds and gross refinancing proceeds for such
Properties less a maximum of 4.5% for reasonable closing
costs. "Net Capital Event Proceeds" for all other assets are
equal to gross sales proceeds and gross refinancing proceeds
for such assets less a maximum of 3.0% for reasonable
closing costs. Lastly, Net Capital Event Proceeds are net of
(x) any amount necessary to pay any capital gains tax due to
the federal or state government as mutually agreed by Newco
and Lender and (y) any net sales proceeds and net
refinancing proceeds required to be applied to satisfy debt
on the Properties.
Newco Leverage
Tests: Newco LTC Test - Neither at closing nor at any time during
the Term may the ratio (the "LTC") of the principal amount
of all Newco Indebtedness, including all secured and
unsecured debt financing, to the Purchase Price of the
Properties, be greater than 81%; provided that upon written
notice from Lender to Newco that the LTC is greater than
81%, Newco will have the right to avoid the occurrence of an
event of default under the Mezzanine Loan by, within 5
business days of such written notice: (i) providing
additional Collateral to secure the Mezzanine Loan or (ii)
making a partial prepayment of the Mezzanine Loan, both in
amounts sufficient to bring the LTC at or below 81%. "Newco
Indebtedness" includes without limitation the Mezzanine
Loan, all indebtedness and contingent liabilities of Newco
and all subsidiaries of Newco and all indebtedness secured
by liens on the Properties.
Newco LTV Test - Neither at closing nor at any time during
the Term may the ratio (the "LTV") of the principal amount
of all Newco
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Indebtedness, to the Fair Market Value of the Properties, be
greater than 80%. "Fair Market Value" means the fair market
value, as determined by an MAI appraiser and as reviewed and
approved by Lender in its sole discretion. In addition to
all appraisals conducted in connection with Lender's
pre-closing credit underwriting and due diligence, Lender
will have the right during the Term to cause an MAI
appraiser to conduct one appraisal per Property at Newco's
expense, and all further such appraisals will be at Lender's
expense.
Newco DSCR Test- The Debt Service Coverage Ratio (the
"DSCR") for the Mezzanine Loan will not be less than 1.12x.
The DSCR will be calculated by dividing underwritten net
operating income (on a trailing 12-month basis) of the
Properties by the sum of (a) all debt service (principal and
interest) payable in respect of Newco Indebtedness (other
than the Mezzanine Loan) and (b) the interest payable on the
outstanding principal balance of Mezzanine Loan.
Release: The Mezzanine Loan will be prepayable in whole at any time
upon 10 days' prior written notice, and, with respect to
individual assets, in part, subject to certain customary
release provisions, including, but not limited to, that (i)
no event of default or event which, with the giving of
notice or the passage of time, would constitute an event of
default, under the Mezzanine Loan has occurred and is
continuing (unless the partial prepayment, including the
120% of the Allocated Loan Amount (defined below) or 100% of
Net Capital Event Proceeds (as provided below), will
completely cure such default or event of default), (ii) a
DSCR of not less than the greater of (a) the DSCR for the
Mezzanine Loan at the time of origination, and (b) the DSCR
existing immediately prior to such release for the Mezzanine
Loan, will continue to be met for the Mezzanine Loan after
giving effect to such release and any prepayment, and (iii)
the Mezzanine Loan is prepaid by an amount (the "Release
Price") equal to the greater of (a) 120% of the "Allocated
Loan Amount" for any Property being released as indicated on
Exhibit A to this Commitment Letter (the "Allocated Loan
Amount") and (b) Net Capital Event Proceeds from the sale of
such Property. The portion of the Release Price in excess of
the Allocated Loan Amount for any released Property shall,
upon payment, be applied pro rata among the remaining
Properties.
Casualty and
Condemnation: Upon the occurrence of a casualty at or condemnation of any
Property, (a) Newco will not be required to pay any premium
to Lender in connection with such casualty or condemnation,
and (b) to the extent lenders under permitted first mortgage
debt require Newco to repair or restore such Property,
Lender shall permit Newco to apply any insurance proceeds or
condemnation award to the repair or restoration of the
applicable Property or to a deduction, from Net Cash Flow.
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Default Rate: An amount equal to the Interest Rate plus 500 basis points.
Reserve
Account: The security for the Mezzanine Loan will include cash
reserves equaling all anticipated Property tenant
improvements, leasing commissions and capital expenditures
not currently held by any senior mortgage lender during the
Term, as determined by Lender. The reserves will be held by
Lender in an interest-bearing account with all interest
credited monthly to the Lock-box (defined below) and will be
released during the Term of the Mezzanine Loan for approved
funding of Property tenant improvements, leasing
commissions, and capital expenditures.
Lockbox: A lock-box (a "Lock-box") will be established on terms
reasonably acceptable to Lender. Until the occurrence of an
event of default under the Mezzanine Loan documents, Newco
will have the right to use excess income from the Lock-box,
other than income payable to Lender and other parties
pursuant to the terms of this Commitment Letter (including
without limitation the "Amortization" section) and the
Mezzanine Loan documents.
Credit
Underwriting: Origination of the Mezzanine Loan will be conditioned upon
and subject to (i) Lender's completion of satisfactory due
diligence prior to closing of all matters which Lender
considers relevant to the Mezzanine Loan, and (ii) Lender's
satisfaction with the creditworthiness of the Mezzanine Loan
and the Properties. Lender will perform credit underwriting
of the Mezzanine Loan, which will include, among other
things, an environmental review, engineering reports, title
reports, appraisal reports, site inspections, NOI audit, a
review of reserves necessary for capital expenditures, and a
full legal documentation review. The results of all credit
underwriting and due diligence will be subject to Lender's
complete satisfaction, in its sole and absolute discretion.
The Client agrees to reasonably cooperate in any site
inspections or other diligence at Lender's request.
Management
Subordination: All obligations and amounts payable under asset management
agreements are required to be subordinated to the Mezzanine
Loan. Lender will have the right, upon the occurrence of an
event of default under the Mezzanine Loan documents, to
cause Newco to terminate any or all asset management
agreements and to cause Newco to replace the managers under
any or all asset management agreements.
Additional
Financing: At the Client's request, Lender will consider providing
first mortgage financing on the Properties. If the Client
chooses not to accept any mortgage financing proposal by
Lender, or Lender chooses not to provide the first mortgage
financing, the Client will have the right to obtain first
mortgage financing on the Properties on customary terms
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from institutional lenders for properties similarly
situated, and otherwise acceptable to Lender in its sole and
absolute discretion, subject to continued compliance with
the Newco Leverage Tests. Otherwise, Newco's parent, Newco
and its subsidiaries will not be permitted to incur
additional financing, whether or not secured directly or
indirectly by the Properties, or secured directly or
indirectly by any of Newco's interests in the Properties, or
otherwise, other than (i) ordinary trade payables and (ii)
indebtedness (such as equipment leases) incurred in the
ordinary course of business, both subject to maximum amounts
to be agreed upon by Lender and Newco. All future mortgage
financing on the Properties, and the terms and conditions of
such financing, must be acceptable to Lender in its sole and
absolute discretion.
Non-Recourse: The Mezzanine Loan will be non-recourse to Newco and the
Client, except with respect to each of the following: fraud,
misapplication of funds, unlawful acts and intentional
misrepresentation. Newco and the Client will also have
liability with respect to any unauthorized transfer or
pledge of any Collateral or Property. In addition, Newco and
Radiant Partners, LLC will also have liability with respect
to certain environmental issues. Daniel Friedman, Anne
Zahner and David Schonberger will not have any personal
liability for environmental issues, other than for any gross
negligence or willful misconduct by them with respect to
environmental issues; provided that the Client will assign
to Lender all rights of the Client under any environmental
insurance. Guaranties of non-recourse carveouts will be
required from the Client or other guarantors ("Guarantors")
acceptable to Lender. Guarantors shall also indemnify Lender
for actual third-party out-of-pocket losses, liabilities,
claims or costs by reason of (i) a voluntary bankruptcy
filing by Newco or mortgage borrower, or involuntary
bankruptcy commenced or actively solicited by a controlling
or controlled affiliate of Newco, mortgage borrower or by
any principal of Newco or such controlling or controlled
affiliate, (ii) intentional violation of the covenants in
the Mezzanine Loan documents requiring single purpose,
bankruptcy remote status of Newco or mortgage borrower or
(iii) voluntary transfer of a Property or direct or indirect
ownership interest in a Property in violation of the
Mezzanine Loan documentation. The parent entity owning the
interests in Newco will act as a Guarantor pursuant to a
separate guaranty (the "Parent Guaranty") of the
non-recourse carveouts and out-of-pocket third party costs
and liabilities described above.
Additional
Conditions: Lender's obligation to fund the Mezzanine Loan occurrence of
each of the following:
(a) The required equity (the "Equity") necessary to
consummate the acquisition of the Properties and related
transactions is committed and funded at or prior to the
closing of the Mezzanine Loan.
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(b) Lender has reviewed and approved, in its sole and
absolute discretion, the purchase and sale agreement and
other documentation evidencing the Client's acquisition of
the Purchase Assets and Assumed Debt (both pursuant to and
as defined in the Purchase Letter).
(c) Lender has approved, in its sole and absolute
discretion, the identity, composition and structure of Newco
and its direct and indirect owners and subsidiaries.
(d) The Client is not in default under the Equity
Engagement Letter (as defined below).
(e) The Client has obtained all consents necessary to effect
the transactions contemplated by this Commitment Letter, as
required by (i) the documents evidencing the existing
mortgage debt on the Properties and (ii) any other document
or instrument applicable to the Properties, Newco, the
Client and their respective affiliates.
(f) The Client has paid all fees and other amounts due
pursuant to that certain Fee Side Letter (the "Fee Letter")
dated of even date herewith between the Client and Lender.
(g) If Lender so requires (in its sole and absolute
discretion), the Client has (i) purchased interest rate caps
on any existing uncapped floating rate first mortgage debt
on the Properties (the "Floating Rate Debt"), at a 7.75%
30-day LIBOR strike price or such other price as Lender
requires in its sole and absolute discretion, or (ii)
purchased such other form of interest rate protection on the
Floating Rate Debt as Lender requires in its sole and
absolute discretion.
Documentation: All documents relating to the Mezzanine Loan will be
prepared by Lender's outside counsel and, as a condition to
closing, must be to Lender's satisfaction, in its sole and
absolute discretion. Lender will require appropriate legal
opinions of counsel to the Client and Newco as a condition
of closing, including but not limited to a substantive
non-consolidation opinion reasonably acceptable to the
Client.
Servicer: Lender or its designee will originate the Mezzanine Loan and
may engage a third party servicer (the "Servicer") to
administer the Mezzanine Loan. The Client will be
responsible for initial setup fees and any direct bank
charges of the Servicer. The Client will not incur any
on-going servicing fees.
Brokers' Fees: The Client and Lender agree that no brokers or advisors have
been engaged, retained or otherwise employed in connection
with the
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transactions contemplated by this letter except UBS Warburg
and PaineWebber Incorporated, who have been retained as
financial advisors and equity placement agents for the
Equity pursuant to a separate engagement letter (the "Equity
Engagement Letter") between the Client and PaineWebber
Incorporated. The fees of PaineWebber Incorporated and UBS
Warburg will be paid pursuant to the Equity Engagement
Letter. The Client and Newco shall indemnify and hold Lender
and its affiliates harmless for any claims, including
without limitation legal fees, arising from any other party
claiming brokerage or advisory fees. Brokerage and advisory
fees, if any, are to be paid through separate agreements by
Newco or the Client.
Representations,
Warranties and
Covenants: It is a condition of Lender's origination of the Mezzanine
Loan that Newco and the Client provide satisfactory
representations, warranties and covenants, including such
representations, warranties and covenants as are customary
and usual for financings of the type contemplated in this
Commitment Letter. In addition, the Mezzanine Loan must
contain indemnities from Newco that are satisfactory to
Lender, including any environmental indemnities deemed
desirable by Lender.
Insurance: Newco shall maintain or cause to be maintained on the
Properties casualty and liability insurance in amounts and
from carriers reasonably satisfactory to Lender, which
insurance may be maintained pursuant to a blanket policy.
Bankruptcy
Protection: Newco and its subsidiaries will be structured as bankruptcy
remote entities satisfactory to Lender and meeting the
requirements of the rating agencies. As part of such
structuring, bankruptcy protection, satisfactory to Lender,
must be provided against any party exerting undue influence
in causing each of Newco and each subsidiary to (i) collude
with Newco or any of its subsidiaries, (ii) enter bankruptcy
or (iii) otherwise act against the interest of Lender. To
that end, Newco and each of its subsidiaries must have
limited-purpose provisions ("Limited Purpose Provisions") in
its constituent documents satisfactory to Lender. These will
include, among others, provisions restricting its other
activities and incurrence of debt (except such debt as is
permitted pursuant to the Mezzanine Loan documents). In
addition, each of Newco and each of its subsidiaries must
have provisions ("Transfer Provisions") in its constituent
documents prohibiting certain direct or indirect transfers
of its equity interests or rights thereunder (or direct or
indirect transfers of debt having an equivalent effect) or
assets. The Limited Purpose Provisions and Transfer
Provisions may not be amended without Lender's consent,
which Lender may provide or withhold in its sole and
absolute discretion. All provisions in the constituent
documents of
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Newco and its subsidiaries, other than the Limited Purpose
Provisions and Transfer Provisions, may not be amended
without Lender's consent, which consent shall not be
unreasonably withheld, delayed or conditioned.
Sale/
Securitization
of Loan: The Client acknowledges that Lender may wish to sell or
securitize all or part of the Mezzanine Loan in a private
placement, Euronote, syndication, participation or other
offering (the "Offering"). The Offering may be accomplished
through the issuance of pass-through certificates evidencing
interests in, or other securities collateralized by, the
documents evidencing or securing the Mezzanine Loan. All
representations, warranties and covenants of Newco made in
the loan documents for the Mezzanine Loan will be assignable
to and inure to the benefit of Lender's successors and
assigns. The Client and Newco shall cooperate in, and shall
provide Lender and its related persons with information
required or appropriate for, the Offering, including without
limitation: (a) providing information about the Client,
Newco, and the Properties, (b) reasonably cooperating in any
site inspections or other diligence, (c) agreeing to
amendments to the Mezzanine Loan documents that do not
materially increase the Client's or Newco's obligations
thereunder and (d) taking any and all other actions that may
be reasonably requested by Lender to consummate such
Offering on such terms and in such form as Lender may
determine to be necessary or desirable. Lender shall
reimburse Newco and the Client for their reasonable actual
third party out-of-pocket costs (including without
limitation attorneys' fees) incurred pursuant to their
obligations to Lender in connection with any Offering.
Debt
Subordination: All rights of Lender and obligations of Newco and the Client
pursuant to the Mezzanine Loan documents will be subordinate
to the rights of the lenders pursuant to the existing first
mortgage debt on the Properties.
Indemnification: The Client agrees to the indemnification and other
agreements set forth in the Indemnification Agreement
attached to this Commitment Letter (the "Indemnification
Agreement"), the provisions of which are incorporated in
this Commitment Letter by reference and shall survive the
termination, expiration or supersession of this Commitment
Letter. The rights of Lender and its affiliates under the
Indemnification Agreement are in addition to and not in lieu
of the rights of PaineWebber Incorporated and its affiliates
(including without limitation Lender) under the Equity
Engagement Letter.
Breakup: At any time prior to the funding of the Mezzanine Loan, the
Client will have the right to replace Lender as the
mezzanine lender, subject to the Client's performance of all
obligations under the Fee Letter.
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Reimbursement of
Expenses: (a) In addition to the fees described herein, and regardless
of whether or not the Mezzanine Loan is funded, the Client
shall promptly pay and shall cause Newco to promptly pay to
Lender upon request all out-of pocket expenses incurred by
Lender and its affiliates in connection with the
underwriting, documenting and closing of the Mezzanine Loan,
including, without limitation, the fees and disbursements of
legal counsel, accountants, environmental experts,
engineers, appraisers, due diligence contractors, other due
diligence expenses, title insurance premiums and costs, fees
and costs of ratings agencies, and travel expenses. Lender
will have the right to withdraw funds from time to time from
the Account (defined below) to pay the expenses described in
this clause (a).
(b) The Client has paid $75,000 to an account (the
"Account") designated by Paine Webber Real Estate Securities
Inc. ("PWRES") for use in paying the expenses (the
"Expenses") (i) described in clause (a) above, and (ii) in
connection with the commitment and funding of the Equity
(whether or not the Equity Engagement Letter is executed).
Upon request by PWRES or Lender, the Client shall wire such
additional funds to the Account as are necessary to
replenish the funds in the Account to pay for the Expenses.
In the event that the aggregate Expenses are less than the
amounts deposited by the Client in the Account PWRES shall
return any excess to the Client within 10 business days of
the termination of this Commitment Letter or Lender's
obligations under this Commitment Letter.
(c) The Client shall upon request directly pay PWRES or
Lender for any Expenses, whether or not the Account holds
funds sufficient to pay for such Expenses.
Confidentiality: Except as otherwise required by law and until the closing of
the Mezzanine Loan and placement of the Equity, Lender and
the Client shall treat as confidential the contents, terms
and existence of this Commitment Letter and the transaction
contemplated hereby; provided, however, that Lender, Newco
and the Client may disclose such information to their
investors (including their beneficial owners), potential
investors, employees, agents, attorneys, accountants and
other experts who require such information in order to
effectuate such transaction, and, in the case of Lender, to
any rating agency, to parties in connection with any
potential participation in the Mezzanine Loan, or as
otherwise required in order to effectuate the transaction
contemplated by, or to enforce any of Lender's rights under,
this Commitment Letter. The disclosure permitted in this
Section is, permitted only to the extent such investor,
potential investor, employee, agent, attorney, accountant or
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other expert, rating agency or other party receiving such
information shall agree to be bound by this confidentiality
provision prior to the disclosure of information to such
party.
Attorney's Fees: In the event of any litigation, arbitration or other dispute
resolution proceedings between the Client, Newco or their
affiliates, on the one hand, and Lender or its affiliates,
on the other hand, arising out of or relating to this
Commitment Letter or the transaction contemplated hereby,
the party prevailing in such litigation, arbitration or
proceeding will be entitled to recover from the other party
the reasonable attorney's fees and disbursements incurred by
such prevailing party in connection with such litigation,
arbitration or proceeding.
No Joint
Venture: Nothing contained herein (i) will constitute Lender or any
of its affiliates as members of any partnership, joint
venture, association or other separate entity with Newco,
the Client, their respective affiliates or any other
entities, (ii) may be construed to impose any liability as
such on Lender, or (iii) constitutes a general or limited
agency or may be deemed to confer on either party hereto any
express, implied or apparent authority to incur any
obligation or liability on behalf of the other.
Joint and Several
Liability: If the Client is composed of more than one person or entity,
each such person or entity shall be jointly and severally
liable for all obligations of the Client set forth in this
Commitment Letter.
Governing Law: This Commitment Letter is, and the Mezzanine Loan documents
will be, governed by, and construed in accordance with, the
laws of the State of New York, without regard to principles
of conflicts of laws.
Entire
Agreement: This Commitment Letter and all attachments and exhibits
hereto (including the Indemnification Agreement) and the Fee
Letter contain all of the agreements and understandings of
the parties hereto relating to the Transaction and the
respective obligations of Lender and the Client in
connection therewith. All other prior negotiations,
proposals, agreements and understandings relating to the
subject matter of this Commitment Letter are hereby null and
void.
Third Party
Beneficiaries: It is understood that Lender is being engaged hereunder
solely to provide the Mezzanine Loan and other services
described above to the Client and that Lender is not acting
as an agent or fiduciary of, and shall have no duties or
liabilities to, the equity holders of the Client or any
third party in connection with its engagement hereunder, all
of which are hereby expressly waived.
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Closing Date: The Closing Date for the Mezzanine Loan will be on or prior
to December 20, 2000, or as otherwise agreed to by Lender
and the Client. If for any reason the closing does not occur
on or prior to December 20, 2000, Lender will have the right
to terminate its obligations under this Commitment.
Termination: Upon the occurrence of any of the events described in
clauses (a) - (c) in the "Additional Commitment Fee" section
of the Fee Letter, all obligations of Lender under this
Commitment Letter will terminate and be of no further force
and effect.
Survival: Upon the termination of Lender's obligations under this
Commitment Letter pursuant to the "Closing Date" or
"Termination" sections above, all obligations of the Client
and all rights of Lender under the Indemnification Agreement
and Fee Letter, and under the "Broker's Fees,"
"Confidentiality", Indemnification," "Reimbursement of
Expenses," "Attorney's Fees", "Joint and Several Liability"
and "Third Party Beneficiaries" sections of this Commitment
Letter, shall survive such termination indefinitely.
Expiration: Lender's obligations under this Commitment Letter will
expire at 5:00 p.m. New York time, on July 6, 2000, unless
originals of this Commitment Letter, the Fee Letter and the
Indemnification Agreement, all fully executed by the Client,
are telecopied to Lender (telecopy number 212-713-7998)
prior to such time, with hard copy delivered to Lender by
Fedex at 1285 Avenue of the Americas, New York, New York
10019, Attn: Ms. Laura Kelly.
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We look forward to working with you to successfully close
this financing.
Very truly yours,
PW REAL ESTATE
INVESTMENTS INC.
By: /s/ James G. Glasgow, Jr.
-----------------------------
Name: James G. Glasgow, Jr.
Title: Senior Vice President
ACCEPTED AND AGREED BY CLIENT:
RADIANT PARTNERS, LLC
By: /s/ Daniel Friedman
-------------------------
Name: Daniel Friedman
Title: Managing Partner
As Individuals:
/s/ Daniel Friedman
----------------------------
Daniel Friedman
/s/ Anne Zahner
----------------------------
Anne Zahner
/s/ David Schonberger
----------------------------
David Schonberger
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<TABLE>
<CAPTION>
EXHIBIT A
-------------------------------------------------------------------------------
Allocated
---------
Loan
----
Property Location State Amount
-------- -------- ----- ------
<S> <C> <C> <C>
Pecanland Mall Monroe LA $14,000,000
Madison & Wells Garage Chicago IL $ 1,400,000
55 Public Square Office Building Cleveland OH $ 675,000
and Garage
North Valley Tech Center Thornton CO $ 6,250,000
Huntington Garage Cleveland OH $ 6,000,000
Westgate Shopping Center Abilene TX $ 480,000
5th & Marshall Garage Richmond VA $ 665,000
Two Rivers Business Center Clarksville TN $ 1,050,000
Printer's Alley Garage Nashville TN $ 0
Long Street Garage Columbus OH $ 480,000
West 3rd Street Parking Lot Cleveland OH $ 0
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