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AMENDMENT TO AMENDED AND RESTATED
PURCHASE AND SALE AGREEMENT
THIS AMENDMENT TO AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT
(this "Amendment") is made as of April 4, 2001, by and between PHILIPS
INTERNATIONAL REALTY CORP., a Maryland corporation, having an office at 000
Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("PIRC"), PHILIPS LAKE WORTH
CORP., a New York corporation, having an office at c/o Philips International
Realty Corp., 000 Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
(individually, "Lake Worth GP" and, together with PIRC, jointly and severally,
"Sellers"), and XXXXXX XXXXXXXX, an individual having a residence at 00
Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, or his designee (the "Purchaser").
W I T N E S S E T H:
WHEREAS, Philips International Realty, L.P. ("PIRLP") and Lake Worth
GP, collectively as seller, and Purchaser, were parties to that certain Amended
and Restated Purchase and Sale Agreement, dated as of June 20, 2000 (the
"Original Agreement"; which, together with this Amendment, shall be hereinafter
collectively referred to as the "Agreement") pursuant to which PIRLP and Lake
Worth GP agreed to sell, transfer, convey, assign and deliver all of their
respective interests in Lake Worth, L.P., a New York limited partnership ("Lake
Worth LP") to Purchaser; and
WHEREAS, in accordance with the Original Agreement, on December 4,
2000, PIRLP assigned its 99.99% limited partnership interest in Lake Worth LP to
PIRC; and
WHEREAS, the Original Agreement sets forth certain requirements that
must be complied with prior to the transfer by Sellers of their respective
interests in Lake Worth LP to Purchaser; and
WHEREAS, Sellers and Purchaser desire to amend the Original Agreement
as set forth herein.
NOW THEREFORE in consideration of Ten and 00/100 Dollars ($10.00), the
Agreement and the mutual agreements and covenants set forth herein, the mutual
receipt and legal sufficiency of which are hereby acknowledged, Sellers and
Purchaser hereby amend the Agreement as follows:
1. All capitalized terms used and not defined or otherwise provided for
herein shall have the meanings ascribed to such terms in the Agreement.
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2. The following new Section 1.04 shall become a part of the Agreement:
"1.04 Simultaneously herewith, Purchaser shall deposit with Xxxxx
Xxxxxxx Xxxxxxx & Xxxxx LLP, as escrow agent (the "Escrow Agent"), the
sum of Three Hundred Fifty Thousand and 00/100 Dollars ($350,000.00),
which amount shall represent the down payment (the "Down Payment") on
the Purchase Price. The Down Payment shall be non-refundable and shall
be held by Escrow Agent in accordance with Article 12 of this
Agreement."
3. The following new Section 1.05 shall become a part of the Agreement:
"1.05 (a) Notwithstanding anything in this Agreement to the
contrary, in the event that PIRC determines at the time of the Closing
hereunder that the net amount PIRC shall have available to distribute
to its shareholders and unitholders (assuming that no units have been
redeemed) upon the liquidation of PIRC (which amount shall include,
among other items, the equity value of all of PIRC's assets (as if none
of them had been distributed or sold pursuant to PIRC's Plan of
Liquidation and Dissolution) and the Purchase Price) in respect of all
outstanding shares of its stock and all outstanding partnership units
in PIRLP (including stock options and warrants) entitled to receive
such liquidating distribution, on a fully diluted basis (the "Estimated
Per Share Distribution Amount"), shall be less than (or greater than)
$18.25 (the "Target Per Share Distribution Amount"), then the Purchase
Price payable by the Purchaser pursuant to Section 1.02 (as adjusted by
Section 1.03) shall be increased (or decreased) by an amount (the
"Additional Purchase Price") equal to the product of (a) 1,870,873
(which amount represents the aggregate number of operating units in
PIRLP which was held by the individuals set forth on Schedule "1"
annexed hereto), multiplied by (b) the difference between (i) the
Target Per Share Distribution Amount and (ii) the Estimated Per Share
Distribution Amount.
(b) Notwithstanding anything in this Agreement to the
contrary, in the event that PIRC determines, immediately prior to the
liquidation of PIRC, that the net amount PIRC has available to
distribute to its shareholders and unitholders (assuming that no units
have been redeemed) at the time of such liquidation (which amount shall
include, among other items, the equity value of all of PIRC's assets
(as if none of them had been distributed or sold pursuant to PIRC's
Plan of Liquidation and Dissolution) and the Purchase Price) in respect
of all outstanding shares of its stock and all outstanding partnership
units in PIRLP (including stock options and warrants) entitled to
receive such liquidating distribution, on a fully diluted basis (the
"Actual Per Share Distribution Amount") is less than (or greater than)
the Estimated Per Share Distribution Amount, then the Additional
Purchase Price payable by the Purchaser pursuant to Section 1.05(a)
above shall be further increased (or decreased) by an amount (the
"Adjusted Additional Purchase Price") equal to the product of (a)
1,870,873 (which amount represents the aggregate number of operating
units in PIRLP which was held by individuals set forth on Schedule
"1"), multiplied by (b) the difference between (i) the Estimated Per
Share Distribution Amount and (ii) the Actual Per Share Distribution
Amount. The provisions of this Section
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1.05(b) shall survive the Closing (as defined below) and the delivery
of the deed by Seller to Purchaser."
4. Article 2 is hereby replaced in its entirety with the following new
Article 2:
"2. The consummation of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Xxxxx
Xxxxxxx Xxxxxxx & Xxxxx LLP. 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, on or before June 1, 2001, TIME BEING OF THE ESSENCE (the
"Closing Date")."
5. The following new Article 12 shall become a part of the Agreement:
"12.1 Escrow Agent shall hold the Down Payment for the parties
hereunder in an interest-bearing account at Chase Manhattan Bank,
Private Banking, 1211 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000. In the event the Closing occurs pursuant to the terms of
this Agreement, Escrow Agent shall release the Down Payment (together
with all interest earned thereon) to Sellers, and the same shall be
credited towards the Purchase Price. In the event that this transaction
shall not close for any reason, then Escrow Agent shall, upon receipt
of written demand by Sellers, remit the Down Payment (together with all
interest earned thereon) to Sellers and, thereafter, neither party
shall have any further rights or obligations hereunder except for those
which are expressly stated to survive the termination of this
Agreement.
12.2 The parties hereto acknowledge that Escrow Agent is acting as
escrow agent hereunder solely as an accommodation to the parties
hereto. In the event any litigation should arise between the parties
hereto and the Escrow Agent is joined therein as a party defendant, the
Purchaser and Sellers do severally and jointly agree to indemnify and
save harmless the Escrow Agent from the payment of any expenses or
disbursements incurred by reason of said litigation. Escrow Agent shall
not be liable to either Sellers or Purchaser in connection with its
performance as Escrow Agent hereunder except in the event of Escrow
Agent's gross negligence or willful default.
12.3 Escrow Agent shall have the right (without incurring any
liability to Sellers or Purchaser) to disregard any notice or
instructions received from any party inconsistent or contrary to the
provisions of this Agreement.
12.4 In the event of any dispute between the parties, the Escrow
Agent, at its option, may disregard all instructions received and may
either (i) hold the Down Payment until the dispute is mutually resolved
or Escrow Agent is otherwise instructed by a final judgment of a court
of competent jurisdiction, or (ii) deposit such Down Payment into a
court of competent jurisdiction (whereupon the Escrow Agent shall be
released and relieved of any and all liability and obligations
hereunder from and after the date of such deposit). Upon the
disposition of the Down Payment in accordance with the provisions of
this Agreement, the Escrow Agent shall be released and relieved of all
liability and obligations hereunder.
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12.5 It is understood and agreed that the Escrow Agent's only duties
and obligations hereunder are as expressly set forth in this Agreement
and no other. The Escrow Agent shall not be liable for any action taken
or omitted hereunder except in the case of the Escrow Agent's gross
negligence or willful disregard of the provisions of this Agreement.
The Escrow Agent shall have the right to consult with separate counsel
of its own choosing (if it deems such consultation advisable) and shall
not be liable for any action taken, suffered or omitted by it in
accordance with the advice of such counsel.
12.6 In the event the Escrow Agent shall be uncertain as to its
duties or rights hereunder or shall receive conflicting instructions,
claims or demands from the parties hereto, or instructions which
conflict with any of the provisions of this Agreement, the Escrow Agent
shall be entitled (but not obligated) to refrain from taking any action
other than to keep safely the Down Payment until the Escrow Agent shall
be instructed otherwise in writing signed by both Sellers and
Purchaser, or by final judgment of a court of competent jurisdiction.
Escrow Agent shall in no event release the Down Payment to either party
until Escrow Agent has been requested in writing by Sellers or
Purchaser to release the Down Payment and has given the other party ten
(10) days to dispute the release of the Down Payment.
12.7 The parties acknowledges that the Escrow Agent is representing
the Sellers in connection with the transaction referenced in this
Agreement. The parties consent and agree that the Escrow Agent may
continue to represent the Sellers in any dispute arising out of this
Agreement or the documents contemplated hereby notwithstanding that the
Escrow Agent shall simultaneously be acting as, or may previously have
acted as, the Escrow Agent hereunder."
0.Xx the event of any conflict or inconsistency between the terms and
conditions of the Original Agreement and this Amendment, the terms and
conditions of this Amendment shall govern and control. Except as expressly
provided in this Amendment, the Original Agreement remains in full force and
effect.
7. This Amendment shall be binding on, and shall inure to the benefit
of, the heirs, legal representatives, and successors and permitted assigns of
the parties hereto.
8. This Amendment may not be changed, amended, modified, waived,
discharged or terminated, except by an instrument in writing signed by the party
against whom enforcement of such change, amendment, modification, waiver,
discharge or termination is sought.
9. This Amendment and the Agreement constitute the entire agreement and
understanding between the parties hereto respecting the subject matter hereof
and there are no other amendments, understandings, undertakings, representations
or warranties among the parties hereto with respect to the subject matter hereof
except as expressly set forth herein.
10. This Amendment may be executed in one or more counterparts, each of
which shall be deemed to be an original, and all of which, taken together, shall
constitute but one and the same Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered all on the day and year first above written.
WITNESSES: SELLERS:
--------- -------
PHILIPS INTERNATIONAL REALTY CORP., a
Maryland corporation
By: /s/ Xxxxx X. Xxxxx
-------------------------------- ---------------------------------
Print Name: Name: Xxxxx X. Petra
--------------------- Title: President
-------------------------------
Print Name:
---------------------
PHILIPS LAKE WORTH CORP., a New York
corporation
By: /s/ Xxxxx X. Xxxxx
-------------------------------- ---------------------------------
Print Name: Name: Xxxxx X. Petra
--------------------- Title: President
-------------------------------
Print Name:
---------------------
PURCHASER:
---------
/s/ Xxxxxx Xxxxxxxx
________________________________ ______________________________
Print Name:_____________________ XXXXXX XXXXXXXX
________________________________
Print Name:_____________________
As to Article 12: ESCROW AGENT:
---------------- ------------
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP
/s/ Xxxxxxx Xxxxxxx
_________________________________
Name: Xxxxxxx Xxxxxxx
Title: Partner
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SCHEDULE "1"
ALLOCATION OF THE UNITS
Individual/Entity: Units Owned:
------------------ ------------
Xxxxxx Xxxxxxxx 1,540,290
Xxxxx Xxxxxxxx 96,943
Xxxx Xxxxxxxx 38,090
SL Florida LLC 195,550
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TOTAL: 1,870,873
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