Exhibit 10.2 to
Form 10-K
FIRST AMENDMENT
TO THE AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
PHILIPS INTERNATIONAL REALTY, L.P.
THIS FIRST AMENDMENT TO THE AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP (hereinafter "Amendment") is made as of March 31, 1999 by PHILIPS
INTERNATIONAL REALTY CORP., a Maryland corporation, as general partner (the
"General Partner") of PHILIPS INTERNATIONAL REALTY, L.P., a Delaware limited
partnership (the "Partnership"), for the purpose of amending the Amended and
Restated Agreement of Limited Partnership of the Partnership dated as of the
16th day of April, 1998, as amended to the date hereof (the "Partnership
Agreement").
WHEREAS, the General Partner has entered into a Rights Agreement as
of March 31, 1999 (the "Rights Agreement") pursuant to which the General
Partner will distribute to the holders of the General Partner's Common Stock,
Rights to purchase shares of a newly authorized class of preferred stock (the
"Rights Plan");
WHEREAS, in connection with the adoption of the Rights Plan, it is
necessary to amend the Partnership Agreement to provide for the equitable
treatment of Limited Partners under the terms of the Partnership Agreement
including, without limitation, in connection with the Limited Partners' Rights
of Redemption under Section 10.3 of the Partnership Agreement;
WHEREAS, pursuant to Section 10.3(j)(iii) of the Partnership
Agreement, in the event that the General Partner issues rights or warrants to
subscribe for or purchase shares
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of Common Stock at a price less than the Current Per Share Market Price, then
the General Partner shall have the obligation to issue to each Limited Partner
the number of rights as he would have been entitled to receive had the
Partnership redeemed the Partnership Units immediately prior to the record
date for such issuance by the General Partner;
WHEREAS, pursuant to Section 16.2 of the Partnership Agreement, the
General Partner has the right to amend the Partnership Agreement without the
consent of the Limited Partners to reflect a change that is of an
inconsequential nature and does not adversely affect the Limited Partners in
any material respect, or to cure any ambiguity, correct or supplement any
provision in the Partnership Agreement not inconsistent with law or with other
provisions, or make other changes to matters arising under the Partnership
Agreement that will not be inconsistent with law or the provisions of the
Partnership Agreement;
WHEREAS the General Partner believes that none of the actions taken
pursuant to this Amendment will adversely affect the Limited Partners in any
material respect or be inconsistent with the law or other provisions of the
Partnership Agreement; and
WHEREAS the General Partner believes that the amendments set forth
herein effectuate the intent of Section 10.3(j)(iii) and do not, in any
matter, prohibit or restrict or have the effect of prohibiting or restricting
the ability of a Limited Partner to exercise its Redemption Rights in full;
and
WHEREAS the General Partner of the Partnership believes it is
desirable and in the best interest of the Partnership and the Limited Partners
to amend the Partnership Agreement as set forth herein.
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NOW THEREFORE, in consideration of the foregoing, the mutual promises
contained herein and for other good and valuable consideration, the receipt
and sufficiency which is hereby acknowledged, the General Partner on behalf of
itself and the Limited Partners, intending to be legally bound, hereby agrees
to make the following amendments to the Partnership Agreement in connection
with the execution of Rights Agreement, and to make certain technical
corrections to the Partnership Agreement, effective as of March 31, 1999:
Section 1 - Defined terms. Unless otherwise specifically provided for
herein, all capitalized terms shall have the same meaning given to such term
in the Partnership Agreement.
Section 2 - Amendments.
A. The definition of "Current Per Share Market Price" set forth in
Article 1 of the Partnership Agreement and is hereby deleted in its entirety
and amended and restated to read in its entirety as follows:
"Current Per Share Market Price", on any date, shall mean
the average of the Closing Price for the five (5) consecutive Trading
Days ending on such date, provided that in the event that shares of
stock exchanged for Partnership Units include Rights that a holder of
such shares would be entitled to receive pursuant to the Rights
Agreement, such Rights shall be deemed to have no value unless a
"Triggering Event" (as defined in the Rights Agreement) shall have
occurred (i.e., if the Rights issued pursuant thereto are no longer
"attached" to the stock and are able to trade independently); and
provided further, that in the event that a Triggering Event shall
have occurred and any stock exchanged for Partnership
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Units includes Rights that the holder of such shares would be
entitled to receive pursuant to the Rights Agreement, then the
Current Per Share Market Price of such Rights shall be determined by
the General Partner acting in good faith on the basis of such
quotations and other information that it considers, in its reasonable
judgment, appropriate.
B. Article 1 of the Partnership Agreement is amended to add the
following terms as defined terms in the Partnership Agreement in appropriate
alphabetical order:
"Rights" means the rights issued to the stockholders of the General
Partner pursuant to the Rights Agreement.
"Rights Agreement" means that certain Rights Agreement dated
as of March 31, 1999, by and between the General Partner and BankBoston, N.A.
C. Section 6.4(b) of the Partnership Agreement entitled "Adjustments
to Partnership Units" is hereby deleted in its entirety and amended to read in
its entirety as follows:
(b) Adjustments to Partnership Units. If the Common Stock
(or any other class of stock of the General Partner for which a class
of Partnership Units may be redeemed) undergoes any stock split or
subdivision, reverse stock split or combination, stock dividends, or
distribution of stock rights, warrants or options, then, without
further action or consent by the General Partner or any Limited
Partner, each corresponding class of Partnership Units that is
redeemable for such stock shall be split, combined, issued or
distributed stock, stock rights, options or warrants in accordance
with the same ratio used to split, combine, issue or distribute the
stock, stock rights, options or warrants. For example, if the
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Common Stock undergoes a reverse two-for-one split, (i.e., every two
shares of old Common Stock are converted to one share of new Common
Stock), then the corresponding class of Partnership Units that are
redeemable for such Common Stock shall undergo a similar reverse
split (i.e., every two OP Units shall be converted into one new OP
Unit)). Similarly, if any class of Partnership Units into which
another class of Partnership Units is convertible, undergoes any
split or reverse split, then without further action or consent by the
General Partner or any Limited Partner, the latter class of
Partnership Units shall be split or combined in accordance with the
same ratio used to split or combine the first class of Partnership
Units. In addition, without limiting the generality of the foregoing,
in the event the number of shares of Common Stock, preferred stock or
any class of stock of the General Partner shall be adjusted for the
issuance or distribution of stock upon the exercisability of the
Rights governed by the Rights Agreement without the receipt of cash
by the General Partner (which adjustment may be satisfied by the
issuing of additional Common Stock or other stock in exchange for the
Rights) then, without further action or consent by the General
Partner or any Limited Partner, the corresponding classes of
Partnership Units shall be appropriately issued additional
Partnership Units or otherwise appropriately adjusted as necessary to
reflect equitably the dilution in the stock of the General Partner
resulting from the issuance of additional stock and the exchange of
stock for the Rights.
D. The Partnership Agreement is hereby amended by adding a new
section 6.3A to read as follows:
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6.3A Exercise of the Rights Pursuant to the Rights
Agreement. In the event that the General Partner has made
contributions of cash or other consideration to the
Partnership attributable to the General Partner's receipt of
cash or other consideration upon the exercise of the Rights
by the shareholders of the General Partner pursuant to the
Rights Agreement, the General Partner shall be issued a
number of Partnership Units as a result of such contribution
equal to the number of shares sold pursuant to such
exercise. In such event, the Limited Partners shall have the
right to purchase additional Partnership Units pursuant to
Section 6.4(e).
E. The Partnership Agreement is hereby amended by adding a new
Section 6.4(e) to read as follows:
(e) Issuance of Additional Units to the Limited Partners. In
the event that the holders of stock of the General Partners
are issued stock for cash or other consideration pursuant to
the Rights Agreement and the General Partner contributes
such cash or other consideration to the Partnership pursuant
to Section 6.3A, then, without further action or consent by
the General Partner or any Limited Partner, each Limited
Partner holding a class of Partnership Units that is
convertible into such stock shall have the right to acquire
additional Partnership Units on the same terms and
conditions as granted to the holders of stock pursuant to
the Rights Agreement, as if the Limited Partner had
converted its Partnership Units into stock immediately prior
to the exercise of the Rights.
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F. The second sentence of Section 7.4(d) of the Partnership Agreement
is amended to add the phrase "or will have" immediately after the word "has"
and immediately before the word "received".
G. Section 10.3(j)(v) of the Partnership Agreement is hereby amended
to delete the reference to "Section 10.3(i)(iv)" in the parenthetical clause
and replace it with "Sections 6.4(c) and 10.3(j)(iv)"; and the reference in
Section 10.3(j)(vi) to "Section 10.3(i)" is hereby deleted and is replaced
with "Section 10.3(j)".
Section 3 - Miscellaneous
A. Effect of Amendment. Except as specifically modified hereby, all
terms and provisions of the Partnership Agreement shall continue to remain in
full force and effect and, except as the context otherwise requires, each
reference to the Partnership Agreement in this Amendment shall be a reference
to the Partnership Agreement as amended hereby.
B. Successors and Assigns. This Amendment shall inure to the benefit
of and be binding upon the successors and assigns of each of the Partners.
C. Heading. The headings in this Amendment are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
D. Governing Law. This Amendment shall be governed by and construed
in accordance with the internal laws of the State of Delaware.
E. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and
of the remaining provisions hereof shall not
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be in any way impaired or affected, it being intended that each party's rights
and privileges shall be enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, the General Partner, on behalf of itself and the
Limited Partners, has executed this Amendment as of the 31st day of March,
1999.
PHILIPS INTERNATIONAL REALTY, L.P.
BY: PHILIPS INTERNATIONAL REALTY CORP.,
as its General Partner
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Xxxxx X. Petra
President
PHLIPS INTERNATIONAL REALTY CORP.,
in its individual legal capacity
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Xxxxx X. Petra
President
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