-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Qr6ox5KU8bDRL8FN/yNN+e3JNnw57NrNEsVSLFz2YkxCxK06z2WiXlfneyUDNWLV 4el++2ToA15W+zdKh7cjYQ== 0000950152-01-000477.txt : 20010131 0000950152-01-000477.hdr.sgml : 20010131 ACCESSION NUMBER: 0000950152-01-000477 CONFORMED SUBMISSION TYPE: SC 13E3/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20010130 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: FIRST UNION REAL ESTATE EQUITY & MORTGAGE INVESTMENTS CENTRAL INDEX KEY: 0000037008 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 346513657 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13E3/A SEC ACT: SEC FILE NUMBER: 005-19676 FILM NUMBER: 1518445 BUSINESS ADDRESS: STREET 1: 551 FIFTH AVE STREET 2: STE 1416 CITY: NEW YORK STATE: NY ZIP: 10176 BUSINESS PHONE: 2129051104 MAIL ADDRESS: STREET 1: 551 FIFTH AVE STREET 2: SUITE 1416 CITY: NEW YORK STATE: NY ZIP: 10176 FORMER COMPANY: FORMER CONFORMED NAME: FIRST UNION REALTY DATE OF NAME CHANGE: 19691012 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: FIRST UNION REAL ESTATE EQUITY & MORTGAGE INVESTMENTS CENTRAL INDEX KEY: 0000037008 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 346513657 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13E3/A BUSINESS ADDRESS: STREET 1: 551 FIFTH AVE STREET 2: STE 1416 CITY: NEW YORK STATE: NY ZIP: 10176 BUSINESS PHONE: 2129051104 MAIL ADDRESS: STREET 1: 551 FIFTH AVE STREET 2: SUITE 1416 CITY: NEW YORK STATE: NY ZIP: 10176 FORMER COMPANY: FORMER CONFORMED NAME: FIRST UNION REALTY DATE OF NAME CHANGE: 19691012 SC 13E3/A 1 l85867bsc13e3a.txt FIRST UNION REAL ESTATE--SCHEDULE 13E3/AM.#1 1 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SCHEDULE 13E-3 (RULE 13e-100) TRANSACTION STATEMENT UNDER SECTION 13(e) OF THE SECURITIES EXCHANGE ACT OF 1934 AND RULE 13e-3 THEREUNDER SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 RULE 13e-3 TRANSACTION STATEMENT UNDER SECTION 13(e) OF THE SECURITIES EXCHANGE ACT OF 1934 AMENDMENT (NO. 1) First Union Real Estate Equity and Mortgage Investments - -------------------------------------------------------------------------------- (Name of the Issuer) First Union Real Estate Equity and Mortgage Investments Radiant Ventures I, L.L.C. Radiant Investors, LLC Daniel P. Friedman David Schonberger Anne Zahner - -------------------------------------------------------------------------------- (Name of Persons Filing Statement) Shares of Beneficial Interest, Par Value $1.00 Per Share and Series A Cumulative Convertible Redeemable Preferred Shares of Beneficial Interest, Par Value $25.00 Per Share - -------------------------------------------------------------------------------- (Title of Class of Securities) 337400105 and 337400303 - -------------------------------------------------------------------------------- (CUSIP Number of Class of Securities) F. Ronald O'Keefe, Esq. Mark Schonberger, Esq. Hahn Loeser & Parks LLP Paul, Hastings, Janofsky & Walker 3300 BP Tower 399 Park Avenue 200 Public Square New York, New York 10022 Cleveland, Ohio 44114 Phone: (212) 318-6859 Phone: (216) 621-0150 Fax: (212) 776-1605 Fax: (216) 241-2824
- -------------------------------------------------------------------------------- (Name, Address and Telephone Numbers of Person Authorized to Receive Notices and Communications on Behalf of Persons Filing Statement) This statement is filed in connection with (check the appropriate box): a. [X] The filing of solicitation materials or an information statement subject to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the Securities Exchange Act of 1934. b. [ ] The filing of a registration statement under the Securities Act of 1933. c. [ ] A tender offer. d. [ ] None of the above. Check the following box if the soliciting materials or information statement referred to in checking box (a) are preliminary copies: [X] Check the following box if the filing is a final amendment reporting the results of the transaction: [ ] CALCULATION OF FILING FEE
- ------------------------------------------------------------------------------------------------------------- TRANSACTION VALUATION* AMOUNT OF FILING FEE - ------------------------------------------------------------------------------------------------------------- Based on transaction value of $76,454,339, $15,890.87 representing the aggregate cash and securities and other property to be received by the Issuer as consideration for the transaction - -------------------------------------------------------------------------------------------------------------
* Set forth the amount on which the filing fee is calculated and state how it was determined. [ ] Check the box if any part of the fee is offset as provided by sec. 240.0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. Amount Previously Paid: Form or Registration No.: Filing Party: Date Filed: - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 This Amendment No. 1 to Rule 13e-3 Transaction Statement (this "Statement") is being filed in connection with the acquisition (the "Acquisition") of certain real estate assets of First Union Real Estate Equity and Mortgage Investments (the "Company") and its subsidiaries by Radiant Ventures I, L.L.C. ("Radiant Ventures"), pursuant to two Contracts of Sale, as amended, and a letter agreement, as amended, each dated as of September 15, 2000, between the Company and certain of its subsidiaries and Radiant Investors, LLC, a Delaware limited liability company ("Radiant Investors"). Concurrently with the filing of this Statement, the Company has filed Amendment No. 4 to its Preliminary Proxy Statement on Schedule 14A (the "Proxy Statement") in connection with the Special Meeting in lieu of the 2000 Annual Meeting of the holders of the Company's Shares of Beneficial Interest, par value $1.00 per share (the "Common Shares"), at which holders of the Common Shares will be asked to approve, among other things, the Acquisition. ITEM 1. SUMMARY TERM SHEET Item 1001 of Regulation M-A. The information contained in the section entitled "SUMMARY" in the Proxy Statement is incorporated herein by this reference. ITEM 2. SUBJECT COMPANY INFORMATION Item 1002 of Regulation M-A. (a) The Company is the subject company for purposes of this Statement. The information contained in the section entitled "PROPOSAL ONE: CONSENT TO THE ASSET SALE -- THE PARTIES -- First Union Real Estate Equity and Mortgage Investments" in the Proxy Statement is incorporated herein by this reference. (b) The information contained in the sections entitled "INTRODUCTION," and "COMPANY INFORMATION" in the Proxy Statement is incorporated herein by this reference. (c), (d) The information contained in the letter to shareholders filed with the Proxy Statement and the section entitled "COMPANY INFORMATION -- Price and Dividend Information" in the Proxy Statement is incorporated herein by this reference. (e) The information contained in the section entitled "PROPOSAL TWO: ELECTION OF TRUSTEES -- CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS -- Standby Purchase Commitments with Gotham" in the Proxy Statement is incorporated herein by this reference. (f) The information contained in the section entitled "COMPANY INFORMATION -- Share Repurchases" in the Proxy Statement is incorporated herein by this reference. ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON Item 1003 of Regulation M-A. (a) - (c) This schedule is filed by the subject company, the Company, a real estate investment trust organized as an Ohio business trust, and each of Radiant Ventures, a Delaware limited liability company, Radiant Investors, a Delaware limited liability company, Daniel P. Friedman, David Schonberger and Anne Zahner (Messrs. Friedman and Schonberger and Ms. Zahner are collectively referred to as the "Executive Officers"). The address and telephone number of the Company is 125 Park Avenue, New York, New York 10017, (212) 949-1373. The address and telephone number of Radiant Ventures, Radiant Investors and the Executive Officers is 1212 Avenue of the Americas, 18th Floor, New York, New York 10036, (212) 905-1100. Radiant Ventures and Radiant Investors are controlled by the Executive Officers, each of whom is an executive officer of the Company. Mr. Friedman is also a former trustee of the Company. In addition, the Executive Officers control Radiant Partners LLC, a Delaware limited liability company which presently manages the Company pursuant to an asset management agreement. The information contained in the sections entitled "PROPOSAL TWO: ELECTION OF TRUSTEES -- Nominees," "PROPOSAL TWO: ELECTION OF TRUSTEES -- Remaining Trustees," "PROPOSAL TWO: ELECTION OF TRUSTEES -- INFORMATION CONCERNING EXECUTIVE OFFICERS, AFFILIATES AND RELATED CONTROLLING PERSONS AND EXECUTIVE OFFICERS AND DIRECTORS OF PERSONS ULTIMATELY IN CONTROL OF THE COMPANY" and "PROPOSAL TWO: ELECTION OF TRUSTEES -- SECURITY OWNERSHIP OF TRUSTEES AND OFFICERS AND CERTAIN BENEFICIAL OWNERS, CONTROLLING PERSONS AND EXECUTIVE OFFICERS AND DIRECTORS OF 3 PERSONS ULTIMATELY IN CONTROL OF THE COMPANY" in the Proxy Statement is incorporated herein by this reference. ITEM 4. TERMS OF THE TRANSACTION Item 1004 of Regulation M-A. (a) The information contained in the section entitled "PROPOSAL ONE: CONSENT TO THE ASSET SALE" in the Proxy Statement is incorporated herein by this reference. (c) The information contained in the section entitled "PROPOSAL ONE: CONSENT TO THE ASSET SALE -- REQUIRED VOTE FOR PROPOSAL" in the Proxy Statement is incorporated herein by this reference (d) The information contained in the section entitled "PROPOSAL ONE: CONSENT TO THE ASSET SALE -- NO DISSENTERS' RIGHTS" in the Proxy Statement is incorporated herein by this reference. (e) None. (f) Not applicable. ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS Item 1005 of Regulation M-A. (a) The information contained in the sections entitled "PROPOSAL TWO: ELECTION OF TRUSTEES -- CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS," "PROPOSAL TWO: ELECTION OF TRUSTEES -- EMPLOYMENT CONTRACTS, TERMINATION OF EMPLOYMENT AND CHANGE IN CONTROL AGREEMENTS" and "PROPOSAL ONE: CONSENT TO THE ASSET SALE -- SPECIAL FACTORS -- INTERESTS OF MANAGEMENT OR TRUSTEES IN THE ASSET SALE" in the Proxy Statement is incorporated herein by this reference. (b) and (c) The information contained in the section entitled "PROPOSAL ONE: CONSENT TO THE ASSET SALE -- SPECIAL FACTORS -- BACKGROUND OF THE ASSET SALE" in the Proxy Statement is incorporated herein by this reference. (e) The information contained in the sections entitled "PROPOSAL TWO: ELECTION OF TRUSTEES -- CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS -- Registration Rights Agreement with Gotham" and "PROPOSAL ONE: CONSENT TO THE ASSET SALE -- TERMS OF THE VOTING AGREEMENTS" in the Proxy Statement is incorporated herein by this reference. ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS Item 1006 of Regulation M-A. (b) Not applicable. (c) (1) - (8) The information contained in the sections entitled "PROPOSAL ONE: CONSENT TO THE ASSET SALE -- SPECIAL FACTORS -- THE ASSET SALE," "PROPOSAL ONE: CONSENT TO THE ASSET SALE -- SPECIAL FACTORS -- INTERESTS OF MANAGEMENT OR TRUSTEES IN THE ASSET SALE," "PROPOSAL ONE: CONSENT TO THE ASSET SALE -- SPECIAL FACTORS -- USE OF PROCEEDS OF THE ASSET SALE" and "PROPOSAL ONE: CONSENT TO THE ASSET SALE -- SPECIAL FACTORS -- PLANS FOR THE COMPANY SUBSEQUENT TO THE ASSET SALE," in the Proxy Statement is incorporated herein by this reference. ITEM 7. PURPOSES, ALTERNATIVES, REASONS AND EFFECTS Item 1013 of Regulation M-A. The information contained in the sections entitled "PROPOSAL ONE: CONSENT TO THE ASSET SALE -- SPECIAL FACTORS -- BACKGROUND OF THE ASSET SALE," "PROPOSAL ONE: CONSENT TO THE ASSET SALE -- SPECIAL FACTORS -- USE OF PROCEEDS OF THE ASSET SALE," "PROPOSAL ONE: CONSENT TO THE ASSET SALE -- SPECIAL FACTORS -- PLANS FOR THE COMPANY SUBSEQUENT TO THE ASSET SALE," "PROPOSAL ONE: CONSENT TO THE ASSET SALE -- SPECIAL FACTORS -- ACCOUNTING TREATMENT OF THE ASSET SALE" and "PROPOSAL ONE: CONSENT TO THE ASSET SALE -- SPECIAL FACTORS -- FEDERAL INCOME TAX CONSEQUENCES OF THE ASSET SALE" in the Proxy Statement is incorporated herein by this reference. 4 ITEM 8. FAIRNESS OF THE TRANSACTION Item 1014 of Regulation M-A. (a) - (e) The information contained in the sections entitled "PROPOSAL ONE: CONSENT TO THE ASSET SALE -- RECOMMENDATION OF THE BOARD OF TRUSTEES", "PROPOSAL ONE: CONSENT TO THE ASSET SALE -- SPECIAL FACTORS -- BACKGROUND OF THE ASSET SALE -- The Sale Contract" and "PROPOSAL ONE: CONSENT TO THE ASSET SALE -- SPECIAL FACTORS -- INTERESTS OF MANAGEMENT OR TRUSTEES IN THE ASSET SALE -- Purchaser's Determination With Respect to Fairness of the Asset Sale" in the Proxy Statement is incorporated herein by this reference. (f) The information contained in the section entitled "PROPOSAL ONE: CONSENT TO THE ASSET SALE -- SPECIAL FACTORS -- BACKGROUND OF THE ASSET SALE -- Other Proposals during the Purchaser Negotiations Prior to the Execution of the Letter of Intent" in the Proxy Statement is incorporated herein by this reference. ITEM 9. REPORTS, OPINIONS, APPRAISALS AND NEGOTIATIONS Item 1015 of Regulation M-A. (a) - (c) The information contained in the section entitled "PROPOSAL ONE: CONSENT TO THE ASSET SALE -- SPECIAL FACTORS -- BACKGROUND OF THE ASSET SALE -- The Sale Contract" in the Proxy Statement is incorporated herein by this reference. ITEM 10. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION Item 1007 of Regulation M-A. (a) - (d) The information contained in the sections entitled "PROPOSAL ONE: CONSENT TO THE ASSET SALE -- THE PARTIES -- Purchaser," and "PROPOSAL ONE: CONSENT TO THE ASSET SALE -- THE PARTIES -- Purchaser's Sources of Funds" in the Proxy Statement is incorporated herein by this reference. ITEM 11. INTEREST IN SECURITIES OF THE SUBJECT COMPANY Item 1008 of Regulation M-A. (a) The information contained in the section entitled "PROPOSAL TWO: ELECTION OF TRUSTEES -- SECURITY OWNERSHIP OF TRUSTEES AND OFFICERS, CERTAIN BENEFICIAL OWNERS, CONTROLLING PERSONS AND EXECUTIVE OFFICERS AND DIRECTORS OF PERSONS ULTIMATELY IN CONTROL OF THE COMPANY" in the Proxy Statement is incorporated herein by this reference. (b) The information contained in the section entitled "PROPOSAL TWO: ELECTION OF TRUSTEES -- SECURITY TRANSACTIONS OF CERTAIN PERSONS" in the Proxy Statement is incorporated herein by this reference. ITEM 12. THE SOLICITATION OR RECOMMENDATION Item 1012 of Regulation M-A. (d) The information contained in the section entitled "PROPOSAL ONE: CONSENT TO THE ASSET SALE -- REQUIRED VOTE FOR PROPOSAL" in the Proxy Statement is incorporated herein by this reference. (e) The information contained in the section entitled "PROPOSAL ONE: CONSENT TO THE ASSET SALE -- RECOMMENDATION OF THE BOARD OF TRUSTEES" in the Proxy Statement is incorporated herein by this reference. ITEM 13. FINANCIAL STATEMENTS Item 1010 of Regulation M-A. (a) and (b) The information contained in the sections entitled "PRO FORMA FINANCIAL DATA OF FIRST UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS" and "SELECTED COMBINED FINANCIAL DATA OF FIRST UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS" in the Proxy Statement is incorporated herein by this reference. The information contained in the section entitled "Item 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K -- (a) Financial Statements and Financial Statement Schedules" in the Company's Annual Report on Form 10-K for 5 the Fiscal Year ended December 31, 1999 is incorporated herein by this reference. The information contained in the section entitled "Item 1. Financial Statements" in the Company's Periodic Report on Form 10-Q for the quarter ended September 30, 2000 is incorporated herein by this reference. ITEM 14. PERSONS/ASSETS, RETAINED, EMPLOYED, COMPENSATED OR USED Item 1009 of Regulation M-A. (a) The information contained in the section entitled "COST OF PROXIES AND SOLICITATIONS" in the Proxy Statement is incorporated herein by this reference. (b) None. ITEM 15. ADDITIONAL INFORMATION Item 1011 of Regulation M-A. (b) The information contained in the Proxy Statement is incorporated herein by this reference. Neither Radiant Ventures, Radiant Investors nor any of the Executive Officers, in their individual capacities, makes any representation or warranty with respect to the information in the Proxy Statement which is incorporated by reference in this Statement that relates to the Company and its affiliates. The Company makes no representation or warranty with respect to the information in the Proxy Statement which is incorporated by reference in this Statement that relates to any of Radiant Ventures, Radiant Investors, the Executive Officers, in their individual capacities, or their respective affiliates. ITEM 16. EXHIBITS Item 1016 of Regulation M-A. (a) Proxy Statement. Incorporated herein by reference to the separate filing on Schedule 14A made concurrently herewith. *(b)(1) Commitment Letter re: Mezzanine Loan, dated July 5, 2000 by and between PW Real Estate Investments Inc., Radiant Partners, LLC, Daniel P. Friedman, Anne Zahner and David Schonberger. *(b)(2) Letter Agreement amending Commitment Letter re: Mezzanine Loan, dated September 19, 2000 by and between PW Real Estate Investments Inc., Radiant Partners, LLC, Daniel P. Friedman, Anne Zahner and David Schonberger. *(b)(3) Second Letter Agreement amending Commitment Letter re: Mezzanine Loan, dated November 8, 2000 by and between PW Real Estate Investments Inc., Radiant Partners, LLC, Daniel P. Friedman, Anne Zahner and David Schonberger. *(b)(4) Commitment Letter re: First Mortgage Loan -- Pecanland Mall, dated September 19, 2000 by and between PW Real Estate Investments Inc., Radiant Partners, LLC, Daniel P. Friedman, Anne Zahner and David Schonberger. *(b)(5) Letter Agreement amending Commitment Letter re: First Mortgage Loan -- Pecanland Mall, dated November 8, 2000 by and between PW Real Estate Investments Inc., Radiant Partners, LLC, Daniel P. Friedman, Anne Zahner and David Schonberger. *(b)(6) Commitment Letter re: First Mortgage Loan -- 3rd Street, Two Rivers and 5th and Marshall, dated September 19, 2000 by and between PW Real Estate Investments Inc., Radiant Partners, LLC, Daniel P. Friedman, Anne Zahner and David Schonberger. *(b)(7) Letter Agreement amending Commitment Letter re: First Mortgage Loan -- 3rd Street, Two Rivers and 5th and Marshall, dated November 8, 2000 by and between PW Real Estate Investments Inc., Radiant Partners, LLC, Daniel P. Friedman, Anne Zahner and David Schonberger. *(b)(8) Letter re: 201 West Madison Avenue, dated September 19, 2000, from General Electric Capital Corporation to David Schonberger. *(b)(9) Letter Agreement re: 201 West Madison Avenue, dated October 18, 2000 between Watch Holdings, LLC and Radiant Ventures I, LLC. *(b)(10) Letter re: 201 West Madison Avenue, dated October 23, 2000 from Andrew W. Albstein to Lori Humphreys. 6 *(b)(11) Letter Agreement re: 201 West Madison Avenue, dated November 17, 2000 between Radiant Ventures I, LLC and Watch Holdings, LLC. *(b)(12) Loan Agreement, dated as of July 27, 1999, by and among North Valley Tech LLC, Salomon Brothers Realty Corp. and LaSalle National Bank Association. *(b)(13) Letter re: Loan Agreement, dated as of July 27, 1999, dated September 27, 2000 from Salomon Brothers Realty Corp. to North Valley Tech LLC. *(b)(14) Letter Agreement re: Loan Agreement, dated as of July 27, 1999, dated October 3, 2000, by and between Salomon Brothers Realty Corp. and North Valley Tech LLC. *(b)(15) Letter re: Loan Agreement, dated as of July 27, 1999, dated October 31, 2000 from Salomon Brothers Realty Corp. to North Valley Tech LLC. *(b)(16) $21,100,000 Promissory Note, dated as of August 3, 1999, executed by 55 Public LLC to Morgan Guaranty Trust Company of New York. *(b)(17) $3,400,000 Promissory Note, dated as of August 3, 1999, executed by 55 Public LLC to Morgan Guaranty Trust Company of New York. *(b)(18) Open-End Mortgage and Security Agreement, dated as of August 3, 1999 between 55 Public LLC and Morgan Guaranty Trust Company of New York. *(b)(19) Letter re: ORECM Loan, dated September 27, 2000 from ORIX Real Estate Capital Markets, LLC to First Union Real Estate Investments. *(b)(20) Letter Agreement re: Printers Alley Garage, dated September 6, 2000 by and between Southtrust Bank and Radiant Partners, LLC. *(b)(21) Letter Agreement re: Printers Alley Garage, dated October 2, 2000 by and between Southtrust Bank, Radiant Ventures I, L.L.C., Radiant Partners, LLC and First Union Real Estate Equity and Mortgage Investments. *(b)(22) Letter re: Commitment Letter, dated October 2, 2000 from Southtrust Bank to Dan Friedman. +(b)(23) Fifth Amendment to Contract of Sale dated as of January 22, 2001 among 55 Public LLC, North Valley 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 Investors, First Union Properties Expansion Company and Radiant Investors LLC. +(b)(24) Letter re: Loan Agreement dated as of July 27, 1999, dated December 19, 2000, from Salomon Brothers Realty Corp. to North Valley Tech LLC. +(b)(25) Letter re: Printer's Alley Garage, dated December 13, 2000, from SouthTrust Bank to Dan Friedman. (c) None. *(d)(1) Voting Agreement, dated as of September 15, 2000, by and between Gotham Partners Management Co. LLC and Radiant Investors LLC. *(d)(2) Letter Agreement, dated as of September 15, 2000, by and between Gotham Partners, L.P., Gotham Partners III, L.P., Gotham Partners International, Ltd. and Gotham Holdings II, L.L.C. *(d)(3) Voting Agreement, dated as of September 15, 2000, by and between Apollo Real Estate Investment Fund II, L.P. and Radiant Investors LLC. (f) None. (g) None. * Previously Filed + Filed herewith. 7 SIGNATURES After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: January 29, 2001 FIRST UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS By: /s/ WILLIAM A. SCULLY ------------------------------------ William A. Scully, Vice Chairman RADIANT VENTURES I, L.L.C. By: RADIANT INVESTORS, LLC, as Managing Member By: /s/ DANIEL P. FRIEDMAN ------------------------------------ Daniel P. Friedman, Member RADIANT INVESTORS, LLC By: /s/ DANIEL P. FRIEDMAN ------------------------------------ Daniel P. Friedman, Member /s/ DANIEL P. FRIEDMAN -------------------------------------- Daniel P. Friedman /s/ DAVID SCHONBERGER -------------------------------------- David Schonberger /s/ ANNE ZAHNER -------------------------------------- Anne Zahner 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 EX-99.B.24 3 l85867bex99-b_24.txt EXHIBIT (B)(24) 1 (b)(24) SALOMON BROTHERS REALTY CORP. 388 Greenwich Street New York, New York 10013 212-816-8179 December 19, 2000 North Valley Tech LLC c/o First Union Real Estate Investments 551 Fifth Avenue, Suite 1416 New York, New York 10176-1499 Attention: Mr. David Schonberger Re: Loan Agreement, dated as of July 27, 1999 (the "Loan Agreement"), by and among North Valley Tech, as borrower, Salomon Brothers Realty Corp., as agent and initial lender ("Salomon") and LaSalle Bank National Association, as collateral agent ("Collateral Agent") Dear David: Reference is made to the Loan Agreement. Capitalized terms used but not defined herein shall have the meanings set forth in the Loan Agreement. Salomon is pleased to issue this commitment (the "Commitment") to restructure the Loan on the terms set forth in the previous letters sent by Salomon to you, copies of which are attached hereto as Exhibit A (the "Application") together with the additional terms set forth below. Loan Amount: $22,500,000 (additional advance ("Additional Advance") equal to $6,500,000. Additional Advance Fee: 1% on the additional advance amount (ie. $65,000). Interest Rate: One month LIBOR plus 3.25%. Interest Rate Cap: As a condition precedent to the funding of the Additional Advance, Borrower shall purchase an interest rate cap in the notional amount of the Additional Advance. The interest rate cap shall have a strike rate equal to not greater than 9.00% and shall be purchased from a counterparty acceptable to Salomon. Guarantor: Radiant Ventures I L.L.C. Cost Certification: Guarantor shall certify, as a condition to funding of the additional advance, that the allocated cost for the Mortgaged Property is not less than $30,000,000. Expenses: Borrower shall pay Salomon's out-of-pocket costs and expenses incurred in implementing the Additional Advances and restructure 2 North Valley Tech LLC December 19, 2000 Page 2 described in this Commitment. Third Party Reports: As a condition precedent to the funding of the Additional Advance, Borrower will deliver to Salomon at Borrower's expense updated third party reports (i.e. Appraisal, Engineering Report and Environmental Report) with respect to the Mortgage Property in form and substance acceptable to Salomon. Prepaid Rent, Etc.: As a condition precedent to the funding of the Additional Advance, Prepaid Rent and the amount of any funds the Borrower owes to tenants in respect of TI Costs that exceed the amount in the leasing reserve escrow account (to the extent such liability is not paid as of the Additional Advance funding date) shall be held in a reserve pledged to Salomon. This Commitment is subject to the condition precedent that the Additional Advance is funded on or prior to February 16, 2001 (unless such date is extended by mutual agreement between Salomon and yourselves). If you are in agreement with the foregoing, please execute this letter in the space provided below and return it to the undersigned. Very truly yours, SALOMON BROTHERS REALTY CORP. a New York corporation By: /s/ A. George Newman ---------------------- Name: A. George Newman Title: Authorized Agent Accepted and Agreed: NORTH VALLEY TECH LLC, a Delaware limited liability company By: NVT Corp., A Delaware corporation, its manager By: /s/ David Schonberger ---------------------- Name: David Schonberger Title: Vice President EX-99.B.25 4 l85867bex99-b_25.txt EXHIBIT (B)(25) 1 b(25) SouthTrust Bank 230 Fourth Avenue North 8th Floor [SouthTrust Bank LOGO] Nashville, TN 37219 (615) 880-4064 DANIEL S. HARRINGTON Group Vice President Commercial Real Estate December 13, 2000 Mr. Dan Friedman Radiant Partners LLC 551 Fifth Avenue, Suite 1416 New York, New York 10176 Dear Mr. Friedman: RE: Commitment Letter dated October 2, 2000 from SouthTrust Bank ("SouthTrust") to Radiant Partners LLC, with respect to an assumption of the loan secured by Printer's Alley Garage located at 300 Church Street, Nashville, Tennessee (the "Commitment Letter") Gentlemen: The above-referenced Commitment Letter is hereby modified and amended to extend the Closing Date set forth in Section 12 from December 31, 2000 to February 28, 2001. Except as set forth herein, all other terms and conditions of the Commitment Letter are hereby ratified and affirmed. Sincerely, /s/ Daniel S. Harrington Daniel S. Harrington Group Vice President -----END PRIVACY-ENHANCED MESSAGE-----