AMENDMENT NO. 1 TO AGREEMENT
This Amendment No. 1 (the "Amendment"), dated as of March 16, 2004,
is made and entered into by and among Presidio Capital Investment Company, LLC,
a Delaware limited liability company ("PCIC"), certain subsidiaries of PCIC
listed on the signature pages hereto (the "PCIC Subsidiaries"), NorthStar
Capital Investment Corp., a Maryland corporation ("NCIC"), Shelbourne Management
LLC, a Delaware limited liability company ("Management Company"), Shelbourne
Properties I, Inc., a Delaware corporation ("Shelbourne I"), Shelbourne
Properties II, Inc., a Delaware corporation ("Shelbourne II"), and Shelbourne
Properties III, Inc., a Delaware corporation ("Shelbourne III" and, together
with Shelbourne I and Shelbourne II, the "Companies" and individually, a
"Company"), Shelbourne Properties I, L.P., a Delaware limited partnership
("Shelbourne I OP"), Shelbourne Properties II, L.P., a Delaware limited
partnership ("Shelbourne II OP"), Shelbourne Properties III, L.P., a Delaware
limited partnership ("Shelbourne III OP", and, together with Shelbourne I OP and
Shelbourne II OP, the "OPs" and, individually, an "OP") and HX Investors, L.P.,
a Delaware limited partnership ("HX").
W I T N E S S E T H
WHEREAS, PCIC, the PCIC Subsidiaries, NCIC, Management Company,
Shelbourne I, Shelbourne II, Shelbourne III, Shelbourne I OP, Shelbourne II OP,
Shelbourne III OP and HX previously entered into that certain Agreement dated as
of January 15, 2003 (the "Restructuring Agreement") pursuant to which, among
other things, certain of the parties thereto agreed to form a joint venture to
be known as Xxxxxxxxxx XX LLC (the "JV") to acquire a 100% membership interest
in Accotel Equity Investors, LLC;
WHEREAS, the parties hereto desire to amend the Restructuring
Agreement to, among other things, permit the distribution of all assets (other
than the Advisory Agreements and the Excluded Properties) in complete redemption
of all partnership and other beneficial interests in the OPs (other than the
partnership interests in the OPs held by the Management Company and any New
Partner) at any time from and after April 1, 2004 at the election of the OPs;
NOW, THEREFORE, in consideration of the foregoing, and the mutual
agreements herein contained, the parties agree as follows:
1. Capitalized Terms. Capitalized terms used herein and not otherwise
defined shall have the respective meanings ascribed thereto in the Restructuring
Agreement.
2. Amendments to Restructuring Agreement. The Restructuring Agreement is
hereby modified and amended as follows:
(a) Section 1(a) is hereby amended to delete the reference to
Section 5(b).
(b) Section 4(b)(iii), 4(b)(v) and 4(b)(viii) are hereby amended to
delete all references to Section 4(f), Section 5 and any subsections of
Section 5.
(c) Section 4(b)(vi) is hereby deleted in its entirety.
(d) Sections 4(d) and 4(e) are hereby amended to delete the words ",
and (ii) from and after the closing of the New Transaction and the
acquisition of the New Property subject to the New Indebtedness, the New
Property," and by deleting "(i)" before the words "the ACCOR Property".
(e) Section 4(f) is hereby deleted in its entirety.
(f) Section 4(g) is hereby amended to read in its entirety as
follows:
"As used in this Agreement: "Restricted Assets" and
"Restricted Indebtedness", respectively, shall mean the ACCOR
Property and the ACCOR Indebtedness, respectively, until the
Complete Redemption by the OPs."
(g) Section 5 is hereby deleted in its entirety with the exception
of the following sentence contained in Section 5(a):
"As used herein the "Liquidation Period" with respect to the
Companies means the period from January 15, 2003 through October 29,
2003."
(h) Section 6(a)(i) is hereby amended to delete the words "except as
required by Section 5(a) or as expressly permitted in Section 5(b)
hereof".
(i) Section 6(a)(iii) is hereby amended to delete the words "and the
New Indebtedness".
(j) Section 6(c) is hereby amended to delete all references to
Section 5 and any subsections of Section 5 and to delete the words "and
the New Indebtedness" in subsection 6(c)(iii).
(k) The last sentence of Section 6(c) is hereby amended to read as
follows:
"in the event the Manager breaches any of the covenants in the
foregoing Sections 6(c)(i), (ii), (iii) or (v), the sole and
exclusive remedy of the parties hereto with respect to such breach
shall be the release and discharge of the OPs' obligations to make
the payments to the Management Company provided in Section 9(a)
hereof".
(l) Section 11(a) of the Settlement Agreement, as amended by Section
8 of the Agreement, is hereby further amended to reduce the payment to be
made by Management to HX from $1,050,000 to $1,000,000. This payment shall
be made concurrently with the Complete Redemption.
(m) Section 9(a) is deleted in its entirety and the following is
inserted in lieu thereof:
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"9. Complete Redemption of Partnership Common Units. (a) Each
OP shall at all times be permitted to distribute its assets (other
than the Advisory Agreements, the Excluded Properties and the assets
required to be maintained by the OPs pursuant to Section 6(b)
hereof) in partial redemption of all partnership and other
beneficial interests in such OP (other than the partnership
interests in such OP held by Management Company and any New
Partner), provided that no OP shall completely redeem all
partnership and other beneficial interests in such OP (other than
the partnership interests held by Management Company and any New
Partner) by distributing all of its remaining assets other than its
Advisory Agreement and the Excluded Properties (the "Complete
Redemption") prior to April 1, 2004. Notwithstanding anything herein
to the contrary, each OP shall only have the right to effectuate a
Complete Redemption at any time from and after April 1, 2004
provided that (i) such OP satisfies the requirements of Section
4(b)(iv) at the time of the Complete Redemption and (ii) a payment
aggregating $125,000 is paid by the OPs to the Management Company at
the time of the Complete Redemption. The Amended and Restated
Limited Partnership Agreement of each of the OPs shall be amended to
permit said distributions. The distribution of assets of the OPs in
redemption of the OP interests of such partners shall not constitute
a "Put Event" under Section 4(b)(i) of this Agreement.
Prior to the Complete Redemption (i) PCIC, NCIC and the
Management Company agree to provide Berkshire Hathaway Credit
Corporation ("BCC") with such information as BCC may reasonably
require to establish that each of PCIC and NCIC is an Approved
Transferee (as that term is defined in the Consent, dated as of
January 8, 2003, executed by BCC with respect to the ACCOR
Indebtedness), (ii) Shelbourne Management agrees to execute a
certificate on behalf of the JV certifying to BCC that, following
the Complete Redemption, the JV will be owned and controlled,
directly and indirectly, by Approved Transferees and (iii) NCIC and
PCIC agree to reaffirm, and NCIC agrees to cause NorthStar
Partnership, LP to reaffirm, the Guarantees, dated as of January 15
and October 1, 2003, previously given by them to AP/RH Holdings LLC,
Xxxxxxx Xxxx, Xxxxx X. Xxxx, Xxxxxx X. Xxxxxx, Xxxxx Xxxxxxx,
Xxxxxxxx X. Xxxxx or Xxxx Xxxxxxx (collectively, the
"Beneficiaries") if requested to do so by the Beneficiaries or any
of them."
(n) Section 9(b) is hereby deleted in its entirety.
(o) Section 9(c) is hereby amended to read as follows:
"(c) Provided that a Put Event shall not have occurred, upon
the Complete Redemption by each OP, none of the Companies or any of
their affiliates shall have any obligations whatsoever under this
Agreement other than as provided in Section 9(a) and 10 hereof,
which shall survive such Complete Redemption."
3. Amendments to Limited Liability Company Agreement of the JV. The
Limited Liability Company Agreement of the JV is hereby modified and amended as
follows:
(a) Sections 1.8, 1.9, 1.10, 3.3 and 4.2(b) are hereby deleted in
their entirety.
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(b) Section 1.14 is hereby amended to read in its entirety as
follows:
"1.14 Restructuring Agreement: That certain Agreement, dated
as of January 15, 2003, as amended on March 16, 2004, among the
Members, the Manager, the Special Manager and certain other
entities."
(c) Section 3.1 is hereby amended to delete the words "and, to the
extent provided in Section 3.3 hereof, the Special Manager".
(d) Section 9.4 is hereby amended to delete the words "Section 3.3
or".
(e) Each of Shelbourne Properties I, Inc., Shelbourne Properties II,
Inc. and Shelbourne Properties III, Inc. hereby resigns as Special Manager
effective as of the time of the Complete Redemption (as defined in the
Restructuring Agreement).
4. Amendments to Amended Designations. The definition of the term
"Agreement" in Section 2 of each Amended Designation is hereby amended to read
as follows:
"Agreement" shall mean the Agreement, dated the date hereof as
amended on March 16, 2004, by and among the Partnership, Parent,
Shelbourne Management Company LLC, and certain other parties."
5. Amendments to Amended and Restated Limited Partnership Agreement of the
OPs. The Amended and Restated Limited Partnership Agreement of each of the OPs
is hereby amended as provided in Exhibit A, B and C annexed hereto to reflect
(i) the admission of Shelbourne Properties GP, Inc. as a general partner of each
of the OPs effective immediately prior to the Complete Redemption and (ii) the
withdrawal of the current general partner of each of the OPs effective as of the
time of the Complete Redemption.
6. Miscellaneous. (a) Except as modified hereby, the Restructuring
Agreement, the Limited Liability Company Agreement of the JV and the Amended
Designations remain in full force and effect and the provisions thereof are
hereby ratified and confirmed.
(b) All references in the Restructuring Agreement to "this
Agreement", "hereunder", "hereto" or similar references, and all
references in all other documents to the Restructuring Agreement shall
hereinafter be deemed references to the Restructuring Agreement as amended
hereby.
(c) Each party shall bear its own costs and expenses in connection
with this Amendment and the transactions contemplated hereby.
(d) This Amendment may be executed in one or more counterparts, and
by different parties hereto in separate counterparts, each of which when
so executed shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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7. Governing Law. This Amendment shall be governed by and construed and
enforced in accordance with the internal laws of the State of New York without
giving effect to the principles of conflicts of law thereof.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the date first written above.
PRESIDIO CAPITAL INVESTMENT
COMPANY, LLC
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx
Authorized Signatory
SHELBOURNE MANAGEMENT LLC
By: PRESIDIO CAPITAL INVESTMENT
COMPANY, LLC, its Sole Member
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx
Authorized Signatory
SHELBOURNE PROPERTIES I, INC.
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Xxxxx Xxxxxxxxx
Executive Vice President
SHELBOURNE PROPERTIES II, INC.
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Xxxxx Xxxxxxxxx
Executive Vice President
SHELBOURNE PROPERTIES III, INC.
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Xxxxx Xxxxxxxxx
Executive Vice President
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SHELBOURNE PROPERTIES I, L.P.
By: SHELBOURNE PROPERTIES I GP, LLC.,
its General Partner
By: SHELBOURNE PROPERTIES I, INC.,
its Sole Member
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Xxxxx Xxxxxxxxx
Executive Vice President
SHELBOURNE PROPERTIES II, L.P.
By: SHELBOURNE PROPERTIES II GP, LLC.,
its General Partner
By: SHELBOURNE PROPERTIES II, INC.,
its Sole Member
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Xxxxx Xxxxxxxxx
Executive Vice President
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SHELBOURNE PROPERTIES III, L.P.
By: SHELBOURNE PROPERTIES III GP, INC.,
its General Partner
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Xxxxx Xxxxxxxxx
Executive Vice President
MILLENNIUM FUNDING I LLC
By: PRESIDIO CAPITAL INVESTMENT
COMPANY, LLC, its Sole Member
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx
Authorized Signatory
MILLENNIUM FUNDING II LLC
By: PRESIDIO CAPITAL INVESTMENT
COMPANY, LLC, its Sole Member
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx
Authorized Signatory
MILLENNIUM FUNDING III LLC
By: PRESIDIO CAPITAL INVESTMENT
COMPANY, LLC, its Sole Member
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx
Authorized Signatory
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MILLENNIUM FUNDING IV LLC
By: PRESIDIO CAPITAL INVESTMENT
COMPANY, LLC, its Sole Member
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx
Authorized Signatory
NORTHSTAR CAPITAL INVESTMENT CORP.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx
Authorized Signatory
HX INVESTORS L.P.
By: EXETER CAPITAL CORPORATION, its
general partner
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------
Xxxxx Xxxxxxxxx
Executive Vice President
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