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Exhibit 99.9
First Union Real Estate Equity and
Mortgage Investments
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
September 15, 2000
Radiant Investors LLC
c/o Radiant Partners LLC
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Re: Purchase of Long Street Garage
Columbus, Ohio (the "Premises")
Ladies and Gentlemen:
Reference is hereby made to that certain Contract of Sale, dated as of September
15, 2000 (the "Contract") between First Union Real Estate and Mortgage
Investments ("FUR") and Radiant Investors LLC ("Purchaser"). All capitalized
terms used herein and not defined herein shall have the meanings ascribed to
them in the Contract.
Notwithstanding the provisions of the Contract to the contrary, it is agreed as
follows:
(i) In the event Purchaser shall fail to make the First Additional Deposit
(as said term is defined in the First Union Contract) under the First
Union Contract (as said term is defined in Section (x) below), no later
than the First Additional Deposit Date (as said term is defined in the
First Union Contract) and the Tenant has not then elected to purchase the
Property pursuant to the terms of the Contract, the Contract shall
thereupon immediately terminate and be null, void and of no force and
effect and Escrowee shall disburse the Deposit to Purchaser, together
with any interest earned on such amount. In addition, Purchaser agrees to
deliver or cause to be delivered to FUR all reports, studies,
memorandums, tests, evaluations and assessments (collectively, the
"Study") for the Property obtained and/or conducted by or on behalf of
Purchaser, together with all reliance letters from each provider of same
which were obtained by Purchaser upon receipt of each Study. Purchaser
agrees to use its good faith, reasonable efforts to obtain a reliance
letter from the provider of each Study, which reliance letter shall
provide that the Study prepared by the provider may be relied upon by
FUR, any prospective or actual purchaser of the Property and any
prospective or actual lender that may provide financing to the owner of
the Property.
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(ii) Notwithstanding any provisions of Section (i) above to the contrary, in
the event that Purchaser (or an affiliate thereof), enters into a Limited
Liability Company Agreement of (the "JV Agreement"), with U.S. Trust
Corporation, National Association, As Trustees Under That Certain
Agreement And Declaration Of Trust Dated As Of September 4, 1997, As
Amended, Known As Landmark Equity Trust VII ("Landmark"), and such entity
shall obtain commitments for Acceptable Financing, as such term is
defined in the JV Agreement, for some or all of the Properties (as such
term shall be defined in the First Union Contract), in addition to the
Property, from and after September 11, 2000, and pursuant to the terms of
the JV Agreement, Purchaser or an affiliate thereof is no longer
obligated to return the Initial Contribution #1 (as such term shall be
defined in the JV Agreement), then in the event Purchaser shall fail to
make the First Additional Deposit under the First Union Contract, no
later than the First Additional Deposit Date, the Contract shall
immediately terminate and be null, void and of no force and effect and
Escrowee shall disburse the Deposit to FUR, together with any interest
earned thereon. In addition, Purchaser shall deliver to FUR each Study
and all reliance letters thereto in accordance with the provisions of
Section (i) above. Notwithstanding the foregoing, if Purchaser (or an
affiliate thereof) is obligated to return the Initial Contribution #1
prior to First Additional Deposit Date then the provisions of this
Section (ii) shall no longer be applicable.
(iii) In the event the Right of First Refusal (as said term is defined in
Section 20(a) of the Contract) is exercised by the Tenant at the
Property, the Deposit being held by Escrowee pursuant to the terms of
this Agreement, plus all interest earned thereon, shall be credited by
Escrowee (being the same escrowee as under the First Union Contract) as
an additional deposit being held under the First Union Contract, and
shall be deemed part of the "Deposit" under the First Union Contract.
Should the Deposit under the Contract be credited to the First Union
Contract prior to the Purchaser making the First Additional Deposit under
the First Union Contract, the Deposit under the Contract shall be
disbursed to the escrowee under the First Union Contract and shall be
credited and added to the "Initial Deposit" (as said term is defined in
the First Union Contract) under the First Union Contract.
(iv) With respect to Section 5 of the Contract, if the closing of the sale of
the Huntington Garage (as said term is defined in the First Union
Contract) shall have occurred prior to December 29, 2000, Purchaser shall
have the right to adjourn the Closing, at any time and from time to time
to a date no later than the earlier of (i) forty five (45) days after the
date that FUR shall notify Purchaser that it has received the Shareholder
Ratification and (ii) January 31, 2001. TIME SHALL BE OF THE ESSENCE,
with respect to Purchaser's obligation to close hereunder as of such
date. If FUR shall have the right and shall desire to adjourn the Closing
to a date after December 29, 2000 and such proposed adjourned date shall
be later than the date that the lender providing mezzanine financing to
Purchaser or any lender agreeing to provide mortgage financing for the
Property shall be obligated to close its respective loan, each such
lender shall have agreed to extend its outside closing date.
Notwithstanding the provisions of this Section (iv) to the contrary, if
FUR shall have the right and shall desire to adjourn the Closing to a
date later than December 29, 2000, Purchaser shall have the right, by
notice to FUR, to elect to terminate this Agreement, on December 29, 2000
or February 28, 2001, in which case, the Escrowee shall disburse the
Deposit hereunder to the escrowee under the First Union
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Contract and the Deposit shall be credited and added to the 'Deposit"
being held under the First Union Contract.
(v) With respect to Section 17 of the Contract, if Seller is unable to
deliver the Tenant's Estoppel Certificate and fails to deliver a Seller's
Certificate in the event such Tenant's Estoppel Certificate is not
obtained, and as a result thereof the lender providing the mortgage
financing for the Property or the lender providing mezzanine financing
shall elect not to provide the financing for the Property, in such case
FUR shall have the right to elect to provide (or to cause another party
to provide) to Purchaser the financing that such lender was otherwise
prepared to provide to Purchaser, it being agreed that if FUR shall make
such election, such loan shall be provided upon the same or better terms
to Purchaser than those terms that were offered by Purchaser's mezzanine
lender or mortgage lender. If FUR shall not elect to provide such
financing, in such case, Purchaser, as its sole and absolute remedy,
shall have the right to elect not to purchase the Property. If Purchaser
shall make such election, the Escrowee shall deliver the Deposit to the
escrowee under the First Union Contract, and such Deposit shall be added
to and become part of the "Deposit" being held under the First Union
Contract. The Contract shall then terminate and neither party shall have
any further obligation to the other party under the Contract, except for
those provisions which are expressly stated to survive termination of the
Contract.
(vi) With respect to Sections 4(a), 5, 17 and 20(a)(i) of the Contract, in the
event that Escrowee shall disburse the Deposit to Purchaser in accordance
with the terms of such Sections, Purchaser hereby instructs Escrowee to
disburse such Deposit directly to the escrowee under the First Union
Contract and credit and add such Deposit to the "Deposit" being held
under the First Union Contract. Should the Deposit under the Contract be
credited to the First Union Contract prior to the Purchaser making the
First Additional Deposit under the First Union Contract, the Deposit
under the Contract shall be disbursed to the escrowee under the First
Union Contract and shall be credited and added to the "Initial Deposit"
(as said term is defined in the First Union Contract) under the First
Union Contract.
(vii) With respect to Section 6.A.(f) of the Contract, after the words
"management fees" in the fourth line of such Section 6.A.(f) the
following words shall be added immediately thereafter:
"(except that only two-thirds of the amount of management fees
payable to Radiant Partners LLC shall be used for proration
purposes)."
(viii) With respect to Section 12(b) of the Contract, any amount which FUR shall
be required to pay ;under Section 12(b) of the Contract shall be credited
against the maximum amount which FUR is required to pay in accordance
with the terms of Section 12(b) of the First Union Contract, in the
aggregate.
(ix) With respect to the Section 15(a) of the Contract, clause (iv) is added
immediately after clause (iii) (as an additional Purchaser default
thereunder) as follows:
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"or (iv) Purchaser shall default, beyond the expiration of any
applicable notice and cure period, under the terms of the First
Union Contract"
(x) With respect to Section 20(a)(i) of the Contract, the following language
is hereby added to end of the first sentence of Section 20(a)(i):
"and sellers under the First Union Contract shall have performed,
satisfied and complied with, or tendered performance of, in all
material respects, all of the covenants, agreements and conditions
required by the First Union Contract. For purposes of this
Agreement, the First Union Contract shall mean that certain
Contract of Sale between FUR, among others, as sellers and
Purchaser as purchaser, dated as of the date hereof, respecting
the purchase of various office, garage and retail properties,
among other things. Except as otherwise set forth immediately
below, Purchaser shall have no obligation to close hereunder
unless the sellers under the First Union Contract shall close
simultaneously herewith."
(xi) If required by Purchaser's mezzanine lender or any other lender providing
financing for the Property, an updated Rent Roll together with a list of
delinquent and unpaid rent, accompanied by an instrument executed by FUR,
addressed to Purchaser, pursuant to which FUR states, without
representation or warranty, that it has no actual knowledge that said
Rent Roll is not true and correct in all material respects as of the
Closing Date. In addition, either such instrument (or a separate
instrument) shall contain a provision pursuant to which Purchaser,
acknowledges that it shall have no rights, remedies or recourse of any
nature whatsoever against FUR by reason of the foregoing statement by FUR
not being true, correct or complete in any respect. In the event that
Purchaser's mezzanine lender or any other lender providing financing for
the Property requires a certified updated Rent Roll, as described above
in this Section (vii), pursuant to which FUR shall represent and warrant
that it has no actual knowledge that said Rent Roll is not true and
correct in all material respects as of the Closing Date, Purchaser shall
cause to be provided to FUR a complete and unconditional indemnification
from an entity which shall own 100% of the beneficial interests in the
Property and all of the properties being sold pursuant to the First Union
Contract as of the Closing Date, and has a net worth of at least Forty
Million ($40,000,000) Dollars, in form reasonably acceptable to FUR,
against all liability that FUR shall incur on account of FUR having
delivered such representation and warranty.
(xii) With respect to Section 20(b)(i) of the Contract, the following language
is hereby added to end of Section 20(b)(i):
"and the First Union Contract. If the Tenant at the Property does
not exercise its Right of First Refusal, then Seller shall have no
obligation to close hereunder unless Purchaser closes
simultaneously herewith on the First Union Contract on the Closing
Date."
(xiii) With respect to Section 21(b) of the Contract, the following language is
hereby added to end of Section 21(b):
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"and shall not terminate that certain Asset Management Agreement,
dated March, 2000, between Radiant Partners, LLC and FUR ("Asset
Management Agreement"), except as a result of Radiant's default,
beyond the expiration of all applicable notice and cure periods
thereunder. The parties acknowledge that to the extent not
inconsistent with (i) the Asset Management Agreement, including,
without limitation, the oversight powers of the Board of Trustees
of FUR, or (ii) the fiduciary duties and other obligations of the
principals of Radiant Partners, LLC to FUR as officers and/or
directors of FUR, Radiant Partners, LLC shall exercise its rights
and obligations under the Asset Management Agreement (x)
consistent with the provisions of any asset management agreement
to be entered into by Radiant Partners, LLC or its affiliates with
the Purchaser (the "Purchaser Management Agreement"); (y) subject
to Purchaser's supervision (in particular such supervision as
provided for under the Purchaser Management Agreement); and (z)
without limiting the generality of the foregoing, by routinely
consulting with Purchaser as to its activities under the Asset
Management Agreement and reasonably taking the views of Purchaser
into account."
(xiv) If FUR shall default under the provisions of the Contract or fails to
obtain Shareholder Ratification for the sale contemplated under the
Contract, the provisions of Section 15(b) and Sections 16(b)-(e) of the
First Union Contract, shall apply in determining any remedies Purchaser
may have under the Contract, subject to the monetary limits set forth in
such Sections of the First Union Contract.
Please acknowledge your agreement with the foregoing by executing this letter in
the space provided below.
Very truly yours,
FIRST UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS, an Ohio business trust
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice Chairman
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ACCEPTED AND AGREED:
RADIANT INVESTORS LLC, a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Managing Member
STROOCK & STROOCK & XXXXX LLP, as escrowee
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx, Partner
For the limited purpose of acknowledging and agreeing to Section (xii) above.
RADIANT PARTNERS, LLC
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Managing Member
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