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Exhibit (b)(2)
PW REAL ESTATE INVESTMENTS INC.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
September 19, 2000
Radiant Partners, LLC
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Mr. Xxxxxx Xxxxxxxx
Dear Xx. Xxxxxxxx:
Reference is made to the commitment letter for mezzanine financing between
Radiant Partners, LLC, Xxxxxx Xxxxxxxx, Xxxx Xxxxxx and Xxxxx Xxxxxxxxxxx
(collectively, the "Client"), and PW Real Estate Investments Inc., dated July 5,
2000 (the "Original Commitment Letter"). Capitalized terms used in this letter
and not defined shall be as defined in the Original Commitment Letter.
The Client and Lender hereby amend the Original Commitment Letter as
provided in this letter agreement (this "First Amendment"). The term "Commitment
Letter" shall mean the Original Commitment Letter, as amended by this First
Amendment.
1. Additional Conditions: In addition to the conditions set forth in the
Original Commitment Letter, Xxxxxx's obligation to fund the Mezzanine
Loan is conditioned on:
(a) Receipt by Lender of estoppel certificates in form and substance
satisfactory to Lender from (i) all Major Tenants (as defined
below), (ii) tenants representing at least 90% of the rentable
and occupied square feet occupied by tenants occupying at least
5,000 square feet but less than 10,000 square feet of rentable
space at the Property, and (iii) tenants representing at least
80% of the rentable and occupied square feet occupied by tenants
occupying less than 5,000 square feet of rentable space at the
Property. Borrower shall provide such estoppel certificates from
time to time during the term of the Mezzanine Loan at Lender's
request but no more often than twice during any calendar year
unless and until an event of default under the Mezzanine loan
documents shall have occurred. For purposes of this condition,
"Major Tenant" means a tenant occupying at least 10,000 square
feet of rentable space at one or more Properties pursuant to one
or more leases.
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(b) Receipt by Lender, with respect to any parking garage at any Property,
of an estoppel certificate in form and substance satisfactory to
Lender from any operator or lessee that occupies the Property for the
purpose of operating the parking facilities located at such Property.
Borrower shall provide such estoppel certificates from time to time
during the term of the Mezzanine Loan at Xxxxxx's request.
(c) The Client not being in default under any commitment letter with
Xxxxxx for mortgage financing secured by one or more of the Properties
or under any fee letter or indemnification agreement of which Lender
is the beneficiary.
2. Closing Date: The Closing Date for the Mezzanine Loan will be on or
prior to December 31, 2000, or as otherwise agreed to by Xxxxxx and the
Client. If for any reason the closing of the Mezzanine Loan (the "Closing")
does not occur on or prior to December 31, 2000, Lender will have the right
to terminate its obligations under this Commitment.
3. Loan Amount: After the Closing, at Xxxxxx's election to effect a
Balance Transfer (as, defined in the Mortgage Commitment Letters), the
Mezzanine Loan Amount may be increased by the amount of the Transferred
Principal (as defined in the Mortgage Commitment Letters). For purposes of
this Commitment Letter, the "Mortgage Commitment Letters" means,
collectively, (i) that certain Commitment Letter for First Mortgage Loan
(Pecanland Mall) between Lender and the Client dated September 19, 2000 (ii)
that certain Commitment Letter for First Mortgage Loan (55 Public Square)
between Lender and the Client dated September 19, 2000, and (iii) that
certain Commitment Letter for First Mortgage Loan (3rd Street, Two Rivers
and 5th & Xxxxxxxx) between Lender and the Client dated September 19, 2000.
4. Credit Underwriting (Environmental/Engineering Review): Lender
will endeavor to provide the Client with the results of its environmental
review and engineering review by September 30, 2000.
5. Assignment: The Client will have a one-time right to assign its
rights and obligations under the Commitment Letter and the Fee Letter, in
whole but not in part, to its affiliate Radiant Ventures I, L.L.C. ("First
Assignee"), subject to (i) First Assignee's assuming all of the Client's
obligations under the Commitment Letter and the Fee Letter, and (ii)
Xxxxxx's approval, in its sole and absolute discretion, of the composition
and structure of First Assignee. After such assignment and assumption of the
Client's rights and obligations under the Commitment Letter and the Fee
Letter, the Client will not be released from its obligations under the
Commitment Letter and the Fee Letter. In addition, First Assignee, upon its
reconstitution into a successor entity having the same structure and
capitalization as First Assignee (such reconstituted entity, "Second
Assignee"), will have a one-time right to assign its rights and obligations
under the Commitment Letter and the Fee Letter, in whole but not in part, to
Second Assignee, subject to (i) Second Assignee's assuming all of the
Client's and First Assignee's obligations under the Commitment Letter and
the Fee Letter, and (ii) Xxxxxx's approval, in its sole and absolute
discretion, of the composition and structure of Second Assignee.
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After such assignment and assumption of the Client's and First Assignee's
rights and obligations under the Commitment Letter and the Fee Letter from
First Assignee to Second Assignee, First Assignee will not be released from
its obligations under the Commitment Letter and the Fee Letter.
Notwithstanding the foregoing provisions of this Section 5, nothing
contained in this First Amendment shall modify or waive (1) Xxxxxx's right
to review and approve, in its sole discretion, the identity, composition and
structure of Newco and its direct and indirect owners and subsidiaries, or
(ii) any of Lender's other review and approval rights contained in the
Original Commitment Letter or the Fee Letter.
For purposes of this Commitment Letter, "Fee Letter" means the Fee Side
Letter (regarding mezzanine financing) between the Client and PW Real Estate
Investments Inc., dated July 5, 2000, as amended.
6. Collateral: Prior to the Closing, the Client will have the right
to exempt the Huntington Garage and Long Street Garage (and no other
Properties) from the Collateral requirements for the Mezzanine Loan as
follows:
At the Closing, Newco will not be required to pledge its interest in the
entity that owns the Huntington Garage, and the term "Properties" will not
include the Huntington Garage, if there has occurred both: (a) the earlier
of the execution and delivery of the Huntington Sale Agreement or the
closing of the Huntington Sale (both as defined in the Fee Letter), and (b)
payment by Client to Lender of the Huntington Sale Fee (as defined in the
Fee Letter).
In addition, at the Closing, Newco will be not required to pledge its
interest in the entity that owns the Long Street Garage, and the term
"Properties" will not include the Long Street Garage, if there has occurred
both: (a) the earlier of the execution and delivery of the Long Street Sale
Agreement or the closing of the Long Street Sale (both as defined in the Fee
Letter), and (b) payment by Client to Lender of the Long Street Sale Fee (as
defined in the Fee Letter).
7. Appraisals: Lender shall notify the Client on or before October
20, 2000 as to whether Lender will require the delivery of, or cause the
Client to require the delivery of, any or all of the pre-Closing appraisals
described in the "Newco Leverage Tests" and "Credit Underwriting" sections
of the Original Commitment Letter. If, with respect to any Property, Lender
does not require the delivery of, or cause the Client to require the
delivery of, such pre-Closing appraisal, then unless and until the
completion of a post Closing appraisal for such Property (in which event
"Fair Market Value" shall have the meaning ascribed to such term in the
Original Commitment Letter), notwithstanding the terms of the Original
Commitment Letter, the "Fair Market Value" of such Property shall mean the
fair market value of such Property, as determined by Lender in its sole and
absolute discretion. Nothing in this Section 7 of this First Amendment shall
modify or waive Lender's right to require the delivery of any post-Closing
appraisal.
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The Fee Letter, the Indemnification Agreement and the Commitment Letter
remain in full force and effect and are hereby ratified by the Client and Lender
in all respects.
Please indicate your acknowledgment and agreement with the terms of this
letter by signing and returning an original to Xxx Xxxxxxx. This letter may be
executed in any number of counterparts.
Very truly yours,
PW REAL ESTATE INVESTMENTS INC.
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Senior Vice President
Accepted and Agreed by the Client:
RADIANT PARTNERS, LLC
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Managing Member
As Individuals:
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
/s/ Xxxxx Xxxxxxxxxxx
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Xxxxx Xxxxxxxxxxx
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