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Exhibit (b)(23)
FIFTH AMENDMENT TO CONTRACT OF SALE
This Fifth Amendment to the Contract of Sale ("Fifth Amendment") is made
and entered into as of this 22nd day of January, 2001 by and among 55 Public
LLC, North Valley Tech, LLC, Southwest Shopping Centers Co. I, L.L.C., First
Union Madison L.L.C., Printers Alley Garage, LLC, First Union Real Estate Equity
and Mortgage Investments ("FUR") and First Union Commercial Properties Expansion
Company, collectively as "Seller" and Radiant Investors LLC, as "Purchaser".
WHEREAS, the Seller and the Purchaser have entered into a Contract of Sale
dated as of the 15th day of September, 2000 (the "Agreement") with respect to
the sale and purchase of (i) the properties known as 00 Xxxxxx Xxxxxx/XXX
Xxxxxxxx, Xxxxxxxxx, Xxxx; North Valley Tech Center, Thornton, Colorado;
Westgate Shopping Center, Abilene, Texas; Madison & Xxxxx Garage, Chicago,
Illinois; Printers Alley Garage, Nashville, Tennessee; Pecanland Mall, Monroe,
Louisiana; Xxxx 0xx Xxxxxx Xxxxxxx Xxx, Xxxxxxxxx, Xxxx; 0xx xxx Xxxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxx; Xxx Xxxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx
and Huntington Garage, Cleveland, Ohio (collectively, the "Premises") and (ii)
that certain promissory note dated February 1997, in the original principal
amount of $1,800,000 made by Club Associates to FUR.
WHEREAS, the Seller and the Purchaser entered into the First Amendment to
Contract of Sale as of the 29th day of September, 2000 (the "First Amendment");
WHEREAS, the Seller and the Purchaser entered into the Second Amendment to
Contract of Sale as of the 26th day of October, 2000 (the "Second Amendment");
WHEREAS, the Seller and the Purchaser entered into the Third Amendment to
Contract of Sale as of the 26th day of December, 2000 (the "Third Amendment");
WHEREAS, the Seller and the Purchaser entered into the Fourth Amendment to
Contract of Sale as of the 26th day of December, 2000 (the "Fourth Amendment");
WHEREAS, the Seller and the Purchaser desire further to modify and amend
the Agreement as hereinafter set forth in this Fifth Amendment, the provisions
of this Fifth Amendment being paramount and the Agreement, as modified by the
First Amendment, the Second Amendment, the Third Amendment and the Fourth
Amendment (collectively, the "Existing Agreement"), being construed accordingly.
NOW THEREFORE, the parties hereto do hereby agree that the Existing
Agreement is further modified and amended as hereinafter set forth:
1. All capitalized terms herein, unless otherwise defined, shall have
the meaning ascribed in the Existing Agreement.
2. A new section (c) is added to Paragraph 25 as follows:
"(c) Notwithstanding the foregoing, at Purchaser's option, Sellers
and/or their affiliates shall provide PMM Financing on the West Third
Street Lot in the amount of $2,000,000 and on the 5th and Xxxxxxxx
Garage in the amount of $5,000,000 subject to and in accordance with the
provisions of Paragraphs 25(a)(iii) through (vi) hereof."
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3. Except as modified hereby, the Existing Agreement shall remain in
full force and effect.
SELLERS:
55 PUBLIC LLC, a Delaware limited
liability company
By: 55 PUBLIC REALTY CORP., a Delaware
corporation, Managing Member
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
NORTH VALLEY TECH LLC, a Delaware
limited liability company
By: NVT Corp., a Delaware corporation,
its Managing Member
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
SOUTHWEST SHOPPING CENTERS CO. I,
L.L.C., a Delaware limited liability company
By: First Union Southwest, L.L.C., a
Delaware limited liability company, its
member
By: First Southwest I, Inc., a
Delaware corporation, its manager
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
FIRST UNION MADISON L.L.C., an
Illinois limited liability company
By: First Union Real Estate Equity and
Mortgage Investments, an Ohio business
trust, its member
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
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PRINTERS ALLEY GARAGE, LLC, a Delaware
limited liability company
By: First Union Real Estate Equity and
Mortgage Investments, an Ohio business
trust, its member
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
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: Authorized Signatory
FIRST UNION COMMERCIAL PROPERTIES
EXPANSION COMPANY
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
PURCHASER:
RADIANT INVESTORS LLC, a Delaware
limited liability company
By: /s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxxx
Title: Managing Member
