May __, 1998
Philips International Realty Corp.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Reference is made to that certain Xxxxxxx and Restated Non-Competition
Agreement, made and entered into on March 30, 1998 and effective as of December
31, 1997 (the "Non-Competition Agreement"), by and among Philips International
Realty Corp. (the "REIT"), Philips International Realty, L.P. (the "Operating
Partnership" and, together with the REIT, the "Company"), Philips International
Holding Corp., Xxxxxx Xxxxxxxx and Xxxxxx Xxxxxx. Capitalized terms used but not
defined herein shall have the meanings assigned to them in the Non-Competition
Agreement.
In connection with the proposed public offering (the
"Offering") of the Common Stock of the Company contemplated by Registration
Statement No. 333-47975 on Form S-11 filed with the Securities and Exchange
Commission on March 13, 1998, as amended, the undersigned hereby grants the
Company a right of first refusal on the sale or transfer by the undersigned of
his partnership or membership interest (the "Interest") in any of the Excluded
Properties, except for: (i) a sale or transfer to any family member, any trust
for the benefit of a family member or any similar sale or transfer; (ii) a sale
or transfer to an existing partner or member of such property partnership; and
(iii) a sale or transfer of the entire property or 100% of the partnership or
membership interest in the property partnership, in which case the undersigned
will use reasonable efforts to cause such property or partnership or membership
interest to be offered to the Company. The undersigned shall give written notice
(a "Sale Notice") to the Company of the price, terms and conditions of such sale
or transfer (including, without limitation, the identity of the proposed
purchaser), and upon receipt of the Sale Notice, the Company shall have thirty
days thereafter (the "Sale Option Period") to elect by written notice to acquire
the Interest on the terms and conditions of the Sale Notice. If the Company
shall elect to so acquire the Interest on such terms and conditions, the parties
shall execute a contract of sale reflecting such terms and conditions and shall
close on such acquisition as required thereunder.
If the Company shall elect not to so acquire the Interest, or shall
fail to make an election on a timely basis, the undersigned shall have the
right, subject to the immediately following sentence, to sell the Interest to
the purchaser or such other bona fide third party as the undersigned shall elect
on terms and conditions no less favorable than those set forth in the Sale
Notice and at a sale price (the "Minimum Sale Price") of not less than the
greater of (i) 95% of the price stated in the Sale Notice or (ii) the price
stated in the Sale Notice less $500,000. If the
sale or transfer contemplated by the Sale Notice is not consummated within one
hundred twenty days from the earlier of (i) the date the Company elects not to
acquire such Interest pursuant to the Sale Notice or (ii) the expiration of the
Sale Option Period, or if the undersigned desires to sell or transfer the
Interest on terms and conditions which are less favorable than those set forth
in the Sale Notice or at a price less than the Minimum Sale Price, then the
undersigned shall comply with the procedures set forth above, and the
restrictions set forth above shall remain in force and effect.
In the event the Company shall fail to timely respond to the Sale
Notice or shall elect not to proceed in accordance with same, the Company shall,
upon request of the undersigned, deliver a written notice (the "Sale Waiver
Notice") to the undersigned waiving the Company's rights as set forth above. If
the Company shall fail to deliver the Sale Waiver Notice, then the Company shall
be deemed to have irrevocably and unconditionally waived its rights hereunder
with respect only to the subject sale under the respective Sale Notice.
All notices to be given or sent hereunder shall be sent to the address
of the party set forth herein and may be given personally or may be delivered by
depositing the same with any nationally recognized overnight delivery service.
Notices given by personal delivery service shall be deemed given on the day so
delivered, and notices delivered by a nationally recognized overnight delivery
service shall be deemed given on the first business day following the deposit of
same with such service.
Please confirm that the foregoing correctly sets forth our agreement by
signing below. This letter agreement shall constitute a binding agreement,
effective only upon consummation of the Offering.
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Name: Xxxxxx Xxxxxxxx
Address: 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Agreed and Accepted:
Philips International Realty Corp.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
By:
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Name: Xxxxx X. Xxxxx
Title: President
