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Exhibit (10)(dd)
SECOND AMENDMENT TO CONTRACT OF SALE
This Second Amendment to the Contract of Sale (this "Second Amendment")
is made and entered into as of this 26th day of October, 2000 by and among 55
Public LLC, North Valley Tech, LLC, Southwest Shopping Centers Co. I, L.L.C.,
First Union Madison L.L.C., Printer's Alley Garage, LLC, First Union Real Estate
Equity and Mortgage Investments 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 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; Printer's Alley Garage, Nashville, Tennessee; Pecanland Mall, Monroe,
Louisiana; West 3rd Street Parking Lot, Cleveland, Ohio; Long Street Lot,
Columbus, Ohio; 5th and Marshall Garage, Richmond, Virginia; Two Rivers Business
Center, Clarksville, Tennessee and Huntington Garage, Cleveland, Ohio
(collectively, the "Premises");
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 desire further to modify and
amend the Agreement as hereinafter set forth in this Second Amendment, the
provisions of this Second Amendment being paramount and the Agreement, as
modified by the First Amendment (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. Supplementing paragraph 3 of the First Amendment and Section 2(a)(vi)
of the Existing Agreement, Purchaser confirms that it has obtained firm
commitments for Acceptable Financing (as such term is defined in the JV
Agreement).
3. Pursuant to Section 1(b) of the Existing Agreement, FUR has entered
into and Purchaser hereby consents to, the Purchase and Sale Agreement
(the "Huntington Garage Contract") with Northeastern Security
Development Corp., dated October 26, 2000 for the sale of the
Huntington Garage. Pursuant to the Huntington Garage Contract,
Northeastern Security Development Corp. has deposited with Commonwealth
Land Title Insurance Company a $1 million good faith deposit.
4. As a result of FUR having entered into the Huntington Garage Contract:
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(i) Purchaser shall not be required to acquire the Huntington
Garage or assume or otherwise pay the principal balance of the
mortgage encumbering the Huntington Garage, which mortgage
shall be deleted as a "Mortgage" under the Existing Agreement;
and
(ii) the purchase price set forth at Section 2(a) of the Existing
Agreement shall be reduced by (x) if the closing on the
Huntington Garage has occurred prior to the Closing under the
Existing Agreement, the Net Sales Price received by FUR from
said sale, or (y) if the closing on the Huntington Garage has
not occurred on or before the Closing under the Existing
Agreement, $21,250,000.00, less the reasonable estimate of the
parties of any and all fees, expenses, charges and other costs
that would have been paid by FUR in connection with the sale
of the Huntington Garage to Northeastern Security Development
Corp. (the "Costs of Closing"), including, without limitation,
brokerage fees, attorney's fees and disbursements and the
transfer taxes, survey fees, escrow charges, recording fees
and other closing costs payable by FUR under the Huntington
Garage Contract. Two business days prior to the Closing under
the Existing Agreement as amended hereby, the parties will
jointly determine their estimate of the Costs of Closing which
shall include reasonable supporting detail for the calculation
of the Costs of Closing. Appropriate adjustments shall be made
to Sections 2(a)(iv) and 2(a)(v) of the Existing Agreement to
effect the foregoing.
5. For computing Apportionments at Section 6A of the Existing Agreement,
the Huntington Garage income and expenses, ordinary and capital,
including monthly interest payments on the mortgage encumbering the
Huntington Garage, shall be included in and subject to the Existing
Agreement through the earlier of the date of the consummation of the
sale of the Huntington Garage or the consummation of the sale of the
Properties by the Seller to the Purchaser under and pursuant to the
terms of the Existing Agreement.
6. 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. Scully
------------------------------------
Name: William A. Scully
Title: Authorized Signatory
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NORTH VALLEY TECH LLC, a Delaware
Limited liability company
By: NVT Corp., a Delaware corporation,
its Managing Member
By: /s/ William A. Scully
------------------------------------
Name: William A. Scully
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 manager
By: First Union Southwest I, Inc., a
Delaware corporation, its manager
By: /s/ William A. Scully
------------------------------------
Name: William A. Scully
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. Scully
------------------------------------
Name: William A. Scully
Title: Authorized Signatory
PRINTER'S ALLEY GARAGE, LLC, a
Delaware limited liability company
By: First Union Realty Equity and
Mortgage Investments, an Ohio business
trust, its managing member
By: /s/ William A. Scully
------------------------------------
Name: William A. Scully
Title: Authorized Signatory
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FIRST UNION REAL ESTATE EQUITY
AND MORTGAGE INVESTMENTS, an
Ohio business trust
By: /s/ William A. Scully
------------------------------------
Name: William A. Scully
Title: Authorized Signatory
FIRST UNION COMMERCIAL
PROPERTIES EXPANSION COMPANY
By: /s/ William A. Scully
------------------------------------
Name: William A. Scully
Title: Authorized Signatory
PURCHASER:
RADIANT INVESTORS LLC, a
Delaware limited liability company
By: /s/ Daniel P. Friedman
------------------------------------
Name: Daniel P. Friedman
TITLE: MANAGING MEMBER
