EX-99.B.23 2 l85867bex99-b_23.txt EXHIBIT (B)(23) 1 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 55 Public Square/CEI Building, Cleveland, Ohio; North Valley Tech Center, Thornton, Colorado; Westgate Shopping Center, Abilene, Texas; Madison & Wells Garage, Chicago, Illinois; Printers Alley Garage, Nashville, Tennessee; Pecanland Mall, Monroe, Louisiana; West 3rd Street Parking Lot, Cleveland, Ohio; 5th and Marshall Garage, Richmond, Virginia; Two Rivers Business Center, Clarksville, Tennessee 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 Marshall Garage in the amount of $5,000,000 subject to and in accordance with the provisions of Paragraphs 25(a)(iii) through (vi) hereof." 2 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/ WILLIAM A. ACKMAN ------------------------------------ Name: William A. Ackman Title: Authorized Signatory NORTH VALLEY TECH LLC, a Delaware limited liability company By: NVT Corp., a Delaware corporation, its Managing Member By: /s/ WILLIAM A. ACKMAN ------------------------------------ Name: William A. Ackman 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/ WILLIAM A. ACKMAN ------------------------------------ Name: William A. Ackman 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/ WILLIAM A. ACKMAN ------------------------------------ Name: William A. Ackman Title: Authorized Signatory 3 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/ WILLIAM A. ACKMAN ------------------------------------ Name: William A. Ackman Title: Authorized Signatory FIRST UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS, an Ohio business trust By: /s/ WILLIAM A. ACKMAN ------------------------------------ Name: William A. Ackman Title: Authorized Signatory FIRST UNION COMMERCIAL PROPERTIES EXPANSION COMPANY By: /s/ WILLIAM A. ACKMAN ------------------------------------ Name: William A. Ackman Title: Authorized Signatory PURCHASER: RADIANT INVESTORS LLC, a Delaware limited liability company By: /s/ DANIEL P. FRIEDMAN ------------------------------------ Name: Daniel P. Friedman Title: Managing Member