Exhibit 99.7
FIRST AMENDMENT TO SECURITY AGREEMENT
This First Amendment to Security Agreement, dated as of March 15, 2002
(this "Amendment"), is made and entered into by and between Shelbourne
Properties III, L.P., a Delaware limited partnership ("Pledgor"), and Shelbourne
Management Company, LLC, a Delaware limited liability company ("Secured Party).
RECITALS:
WHEREAS, in consideration of the execution and delivery of that
certain Secured Promissory Note, dated as of February 14, 2002 (the "Note"), by
Pledgor in favor of Secured Party and Secured Party's execution and delivery of
that certain Purchase and Contribution Agreement, dated as of February 14, 2002
(the "Purchase Agreement"), by and among Pledgor, Secured Party and certain
other parties, the parties hereto entered into that certain Security Agreement,
dated as of February 14, 2002 (the "Security Agreement");
WHEREAS, pursuant to that certain Joint Venture Agreement of
Tri-Columbus Associates, dated as of September 15, 1988, by and between High
Equity Partners L.P. -Series 88, a Delaware limited partnership, as predecessor
by merger to Pledgor, IR Columbus Corp., a Delaware corporation, and High Equity
Partners L.P. -Series 86, a Delaware limited partnership, as predecessor by
merger to Shelbourne Properties II, L.P., a Delaware limited partnership
("Shelbourne II"), that certain joint venture (Tri-Columbus Associates") was
formed, and Tri-Columbus Associates owns certain real property commonly known
as Tri-Columbus-Volvo, located at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxx (the
"Westerville Property");
WHEREAS, Pledgor has acquired the interest of Tri-Columbus Corp. in
Tri-Columbus Associates;
WHEREAS, in lieu of Pledgor granting mortgages to Secured Party
encumbering the Westerville Property pursuant to Section 5.6 of the Purchase
Agreement, Pledgor has agreed to pledge, and grant a security interest in,
Pledgor's ownership interest to Secured Party in Tri-Columbus Associates to
Secured Party as security for Pledgor's obligations under the Note and the
Purchase Agreement;
WHEREAS, Pledgor and Secured party desire to amend the terms of the
Security Agreement as provided in this Amendment; and
WHEREAS, the foregoing recitals are intended to be an integral part of
this Amendment.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) paid in
hand the foregoing premises and other good and valuable consideration, the
receipt an sufficiency of which are hereby acknowledged, Pledgor and Secured
Party agree to amend the Security Agreement on the date hereof in the following
particulars:
1. Capitalized terms used in this Amendment and not defined herein
shall have the meaning provided in the Security Agreement.
2. Definitions. The Security Agreement is hereby amended by adding
the definitions to Section 6.1(b):
"Joint Ventures" means collectively the following joint ventures: (i)
000 Xxxxxxxx Joint Venture, a Delaware general partnership and (ii)
Tri-Columbus Associates, a Delaware general partnership.
"Lien" means any mortgage, lien, charge, restriction, pledge, security
interest, option, lease or sublease, claim, proxy, right of any third
party, easement, encroachment or encumbrance.
"Permitted Real Property Liens" means
(a) Liens in favor of carriers, warehousemen, mechanics, materialmen and
landlords granted in the ordinary course of business for amounts not
overdue or being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on Pledgor's books;
(b) Liens incurred or deposits made in the ordinary course of business in
connection with worker's compensation, unemployment insurance or other
forms of governmental insurance or benefits, or to secure performance
of tenders, statutory obligations, bids, leases or other similar
obligations (other than for borrowed money) entered into in the
ordinary course of business or to secure obligations on surety and
appeal bonds or performance bonds;
(c) judgment Liens in existence for less than 45 days after the entry
thereof or with respect to which execution has been stayed or the
payment of which is covered in full (subject to a customary
deductible) by insurance maintained with responsible insurance
companies;
(d) easements, rights-of-way, zoning restrictions, minor defects or
irregularities in title and other similar encumbrances not interfering
in any material respect with the value or use of the property to which
such Lien is attached;
(e) Liens for taxes, assessments or other governmental charges or levies
not at the time delinquent or thereafter payable without penalty or
being diligently contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with GAAP shall have
been set aside on Pledgor's books; and
(f) any Liens in existence as of the date hereof and which would be shown
on a title commitment prepared by a nationally recognized title
insurance company.
"Properties" means collectively the following properties: (i) the
property commonly know as 568-578 Broadway, located at 000-000 Xxxxxxxx, Xxx
Xxxx Xxxx, Xxx Xxxx and (ii) property commonly known as Tri-Columbus-Volvo,
located at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxx.
3. Collateral. The Security Agreement is hereby amended by deleting
from Section 6.1(b) the definition of "Collateral" in its entirety and
substitution the following in place therefore:
"Collateral" shall mean all right, title and interest in, to and under
the interests in: (i) 000 Xxxxxxxx Joint Venture, a Delaware general
partnership, the joint venture owning 000-000 Xxxxxxxx in New York City and
(ii) Tri-Columbus Associates, a Delaware general partnership, the joint
venture owning certain real property commonly known as Tri-Columbus-Volvo,
located at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxx.
4. Preservation of Status of Security. The Security Agreement is
hereby amended by adding the following new subsections (c)(iii) and (d) at the
end of Section 3.1 as follows:
(c) (iii) Other than Permitted Real Property Liens, without the prior
written consent of the Secured Party, the Pledgor will not sell, assign,
transfer, pledge or otherwise dispose of or encumber any of its rights in
or to the Collateral or any legal or beneficial interest therein, directly
or indirectly or consent to or authorize the sale, assignment, transfer,
pledge, mortgage or other disposition of or encumbrance of any of the
Properties.
(d) _Other Financing Statements. The Pledgor shall not file, or suffer
to be on file, or authorize or permit to be filed or to be on file, in any
jurisdiction, any financing statement, mortgage, deed of trust or like
instrument with respect to the Collateral or any of the Properties in which
the Secured Party is not named as the sole secured party, mortgagee or
beneficiary other than Permitted Real Property Liens.
5. Additional Covenants. The Security Agreement is hereby amended by
adding the following new Section 3.4, Section 3.5 and Section 3.6 to the end of
Article III as follows:
Section 3.4 Taxes; Compliance. The Pledgor shall (a) pay or cause to
be paid when due all Taxes, assessments and governmental charges levied or
assessed or imposed upon or with respect to the Collateral or any of the
Properties or its sale or other disposition and (b) comply with or cause to
be complied with all applicable laws relating to the Collateral and each of
the Properties.
Section 3.5 Ownership and Defense of Collateral and Properties.
(a) The Pledgor shall at all times (a) have good title to, and be the
sole owner of, each asset that is Collateral, free of all of the following
(i) all Liens other than Permitted Liens, (ii) in the case of any
Collateral that is a financial asset, any adverse claim (as defined in
Section 8-102(a)(1) of the Uniform Commercial Code), and (iii) in the case
of any Collateral that is an instrument, any claim referred to in Section
3-305(1) of the Uniform Commercial Code and (b) defend the Collateral
against the claims and demands of all third Persons.
(b) The Pledgor shall at all times cause the Joint Ventures to have
good title to and be the sole owner of its respective Property free of all
Liens other than Permitted Real Property Liens.
Section 3.6 No Amendments, Etc. of Collateral. The Pledgor shall not
enter into, permit to exist, consent to or authorize any restriction with
respect to the transferability of or any rights under or in respect of the
Collateral or the Properties (other than Permitted Real Property Liens), or
any other such asset, other than restrictions arising under the Loan
Documents.
6. Except as amended by this Amendment, the Security Agreement shall
continue to remain in full force and effect.
7. This Amendment shall be governed by the laws of the State of New
York, without regard to choice of law rules.
8. This Amendment may be executed in one or more counterparts, each of
which shall constitute an original and all of which when taken together shall
constitute one binding agreement.
9. The provisions of this Amendment are severable, and if any one
clause or provision hereof shall be held invalid or unenforceable in whole or in
part, then such invalidity or unenforceability shall affect only such clause
or provision, or part thereof, and not any other clause or provision of this
Amendment.
10. This Amendment shall be deemed to constitute an amendment to the
Purchase Agreement to the extent necessary.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the parties hereto have entered into this
Amendment on the date first written above.
PLEDGOR:
SHELBOURNE PROPERTIES III, L.P.
By: SHELBOURNE PROPERTIES III GP, Inc.,
as General Partner
By: /s/Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Director
SECURED PARTY:
SHELBOURNE MANAGEMENT LLC
By: PRESIDIO INVESTMENT CAPITAL
COMPANY, LLC
By: /s/Xxxxxx X. Xxxxx
------------------------
Name:
Title:
