EXHIBIT 10.3
VOTING AGREEMENT
VOTING AGREEMENT, dated as of March 21, 2001 (the
"Agreement"), by and among Warburg, Xxxxxx Equity Partners L.P., a Delaware
limited partnership ("Warburg"), Price Enterprises, Inc., a Maryland corporation
(the "Company") and Excel Legacy Corporation, a Delaware corporation ("Legacy"
or the "Stockholder").
W I T N E S S E T H:
WHEREAS, contemporaneously with the execution and delivery of
this Agreement, Legacy, the Company and PEI Merger Sub, Inc., a wholly owned
subsidiary of the Company ("Merger Sub") are entering into an Agreement and Plan
of Merger, dated as of the date hereof (the "Merger Agreement"), which provides
for, upon the terms and subject to the conditions set forth therein, the merger
of Merger Sub with and into Legacy (the "Merger");
WHEREAS, contemporaneously with the execution and delivery of
this Agreement, Warburg and the Company are entering into a Securities Purchase
Agreement, dated as of the date hereof (the "Purchase Agreement"), which
provides for, upon the terms and subject to the conditions set forth therein,
the purchase by Warburg of (i) an aggregate of 17,985,612 shares of 9% Series B
Junior Convertible Redeemable Preferred Stock, $.0001 par value per share
("Company Series B Preferred Shares"), of the Company and (ii) one or more
warrants, each substantially in the form of Exhibit D thereto, to purchase an
aggregate of 2,500,000 shares of Common Stock of the Company, $.0001 par value
per share ("Company Common Shares"), in accordance with the terms of such
warrants at an exercise price of $8.25 per share (the "Warburg Investment");
WHEREAS, pursuant to the terms of the Purchase Agreement, the
Company must amend and restate its Articles of Incorporation (as defined in the
Purchase Agreement) in the form attached as Exhibit G to the Purchase Agreement;
WHEREAS, as of the date hereof, each Stockholder owns
(beneficially and of record) the number of Company Common Shares and 8 3/4%
Series A Cumulative Redeemable Preferred Shares, par value $.0001 per share
("Company Series A Preferred Shares") set forth opposite such Stockholder's name
on Schedule I hereto (all such shares and associated rights so owned and which
may hereafter be acquired by such Stockholder prior to the termination of this
Agreement, whether upon the exercise of options or by means of purchase,
dividend, distribution or otherwise, being referred to herein as such
Stockholder's "Shares");
WHEREAS, as a condition to their willingness to enter into the
Purchase Agreement, the Company and Warburg have requested that the Stockholder
enter into this Agreement; and
WHEREAS, in order to induce the Company and Warburg to enter
into the Purchase Agreement, the Stockholder is willing to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements herein contained, and intending to be legally
bound hereby, the Company, Warburg and the Stockholder hereby agree as follows:
ARTICLE I.
TRANSFER AND VOTING OF SHARES; AND
OTHER COVENANTS OF THE STOCKHOLDER
Except as set forth in Exhibit A hereto, the Stockholder hereby agrees
as follows:
SECTION 1.1. VOTING OF SHARES. From the date hereof until the termination
of this Agreement pursuant to Section 5.2 hereof (the "Term"), at any meeting of
the stockholders of the Company, however called, and in any action by consent of
the stockholders of the Company, the Stockholder shall vote its Shares in favor
of (i) the Amended Articles of Incorporation (as defined in the Purchase
Agreement), (ii) the issuance of Company Common Shares in connection with the
Merger Agreement and (iii) any other matter necessary for consummation of the
transactions contemplated by the Merger Agreement and the Purchase Agreement
(including, but not limited to, the issuance of Company Series B Preferred
Shares pursuant to the Purchase Agreement) which is considered at any such
meeting of stockholders or in such consent, and in connection therewith to
execute any documents which are necessary or appropriate in order to effectuate
the foregoing, including the ability for the Company or its nominees to vote
such Shares directly.
SECTION 1.2. NO INCONSISTENT ARRANGEMENTS.
(a) Except as contemplated by this Agreement and the Purchase
Agreement, the Stockholder shall not during the Term (i) grant any proxy,
power-of-attorney or other authorization in or with respect to such Shares,
(ii) deposit such Shares into a voting trust or enter into a voting
agreement or arrangement with respect to such Shares, or (iii) take any
other action that would in any way restrict, limit or interfere with the
performance of its obligations hereunder or the transactions contemplated
hereby or by the Purchase Agreement.
(b) The Stockholder may sell, transfer, assign, pledge or otherwise
dispose of any or all of the Stockholder's Shares to any person or entity
who agrees in writing to be bound by the provisions of this Agreement (a
"Permitted Transferee"), and any sale, transfer, pledge or other
disposition of such Shares to any person or entity other than a Permitted
Transferee shall be null and void and of no effect.
SECTION 1.3. PROXY. The Stockholder hereby revokes any and all prior
proxies or powers of attorney in respect of any of the Stockholder's Shares and
constitutes and appoints the Company, or any nominee of the Company, with full
power of substitution and resubstitution, at any time during the Term, as its
true and lawful attorney and proxy (its "Proxy"), for and in its name, place and
stead, to demand that the Secretary of the Company call a special meeting of the
stockholders of the Company for the purpose of considering any matter referred
to in Section 1.1 (if permitted under the Articles of Incorporation and the
By-Laws (as defined in the Purchase Agreement)) and to vote each of such Shares
as its Proxy, at every annual, special, adjourned or postponed meeting of the
stockholders of the Company, including the right to sign its name (as
stockholder) to any consent, certificate or other document relating to the
Company that Maryland Law may permit or require as provided in Section 1.1.
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THE FOREGOING PROXY AND POWER OF ATTORNEY ARE
IRREVOCABLE AND COUPLED WITH AN INTEREST THROUGHOUT THE TERM.
SECTION 1.4. STOP TRANSFER. The Stockholder shall not request that the
Company register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of such Stockholder's Shares, unless
such transfer is made in compliance with this Agreement.
SECTION 1.5. INDEMNIFICATION OF STOCKHOLDER. The Company will indemnify the
Stockholder against all claims, actions, suits, proceedings or investigations,
losses, damages, liabilities (or actions in respect thereof), costs and expenses
(including reasonable fees and expenses of counsel) arising out of or based upon
the execution or delivery of this Agreement or the performance by the
Stockholder of its obligations hereunder and in the event of any such claim,
action, suit, proceeding or investigation unless the Company shall have assumed
the defense thereof as provided below, (i) the Company shall pay as incurred the
reasonable fees and expenses of counsel selected by the Stockholder, which
counsel shall be reasonably satisfactory to the Company, promptly as statements
therefor are received, and (ii) the Company will cooperate in the defense of any
such matter; PROVIDED, HOWEVER, that the Company shall not be liable for any
settlement effected without its prior written consent (which consent shall not
be unreasonably withheld); and PROVIDED, FURTHER, that the Company shall not be
obliged pursuant to this Section 1.5 to pay the fees and disbursements of more
than one counsel for the Stockholder in any single action except to the extent
that, in the opinion of counsel for the Stockholder, representation of the
Company and the Stockholder by the same counsel would be inappropriate under the
applicable standards of professional conduct. In the event any person asserts a
claim against the Stockholder for which the Stockholder intends to seek
indemnification hereunder, the Stockholder shall give prompt notice to the
Company, and shall permit the Company to assume the defense of any such claim or
any litigation resulting therefrom with counsel selected by the Company, which
counsel shall be Xxxxxx & Xxxxxxx (unless such firm shall have a conflict of
interest) or other counsel reasonably acceptable to the Stockholder; provided
that the Stockholder may participate in such defense at its own expense, and
provided further that the failure of the Stockholder to give notice as provided
herein shall not relieve the Company of its obligations under this Section 1.5
except to the extent the Company is materially prejudiced thereby. The Company
shall not, in the defense of any such claim or litigation, except with the
consent of the Stockholder being indemnified, consent to the entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to the Stockholder of a
release from all liability in respect of such claim or litigation. The
Stockholder shall promptly furnish such information regarding itself or the
claim in question as the Company may reasonably request and as shall be
reasonably required in connection with the defense of such claim and litigation
resulting therefrom.
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ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
Except as set forth in Exhibit A hereto, the Stockholder
hereby represents and warrants to the Company and Warburg as follows:
SECTION 2.1. DUE AUTHORIZATION, ETC. The Stockholder has all requisite
power and authority to execute, deliver and perform this Agreement, to appoint
the Company as its Proxy and to consummate the transactions contemplated hereby.
The execution, delivery and performance of this Agreement, the appointment of
the Company as Stockholder's Proxy and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of the Stockholder. This Agreement has been duly executed and delivered by
or on behalf of the Stockholder and constitutes a legal, valid and binding
obligation of the Stockholder, enforceable against the Stockholder in accordance
with its terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws and except that the availability of equitable
remedies, including specific performance, is subject to the discretion of the
court before which any proceeding for such remedy may be brought. There is no
beneficiary or holder of a voting trust certificate or other interest of any
trust of which the Stockholder is trustee whose consent is required for the
execution and delivery of this Agreement of the consummation by the Stockholder
of the transactions contemplated hereby.
SECTION 2.2. NO CONFLICTS; REQUIRED FILINGS AND CONSENTS.
(a) The execution and delivery of this Agreement by the Stockholder
does not, and the performance of this Agreement by the Stockholder will
not, (i) conflict with or violate any trust agreement or other similar
documents relating to any trust of which the Stockholder is trustee, (ii)
conflict with or violate any law applicable to the Stockholder or by which
the Stockholder or any of the Stockholder's properties is bound or affected
or (iii) result in any breach of or constitute a default (or an event that
with notice or lapse of time or both would become a default) under, or give
to others any rights of termination, acceleration or cancellation of, or
result in the creation of a lien or encumbrance on any assets of the
Stockholder, including, without limitation, the Stockholder's Shares,
pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to
which the Stockholder is a party or by which the Stockholder or any of the
Stockholder's assets is bound or affected, except, in the case of clauses
(ii) and (iii), for any such breaches, defaults or other occurrences that
would not prevent or delay the performance by the Stockholder of such
Stockholder's obligations under this Agreement.
(b) The execution and delivery of this Agreement by the Stockholder
does not, and the performance of this Agreement by the Stockholder will
not, require any consent, approval, authorization or permit of, or filing
with or notification to, any governmental or regulatory authority (other
than any necessary filing under the HSR Act or approvals or consents
required under applicable foreign antitrust or competition laws or the
Exchange Act), domestic or foreign, except where the failure to obtain such
consents, approvals, authorizations or permits, or to make such filings or
notifications, would not prevent or delay the performance by the
Stockholder of the Stockholder's obligations under this Agreement.
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SECTION 2.3. TITLE TO SHARES. The Stockholder is the sole record and
beneficial owner of its Shares, free and clear of any pledge, lien, security
interest, mortgage, charge, claim, equity, option, proxy, voting restriction,
voting trust or agreement, understanding, arrangement, right of first refusal,
limitation on disposition, adverse claim of ownership or use or encumbrance of
any kind ("Encumbrances") other than restrictions imposed by the securities laws
or pursuant to this Agreement and the Purchase Agreement.
SECTION 2.4. NO FINDER'S FEES. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of the
Stockholder. The Stockholder, on behalf of itself and its affiliates, hereby
acknowledges that it is not entitled to receive any broker's, finder's,
financial advisor's or other similar fee or commission in connection with the
transactions contemplated hereby or by the Purchase Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY AND WARBURG
SECTION 3.1. The Company hereby represents and warrants to Warburg and the
Stockholder as follows:
(a) EXISTENCE; GOOD STANDING; AUTHORITY. The Company is a corporation
duly incorporated, validly existing and in good standing under the laws of
the State of Maryland. The Company is duly licensed or qualified to do
business as a foreign corporation and is in good standing under the laws of
any other state of the United States in which the character of the
properties owned or leased by it therein or in which the transaction of its
business makes such qualification necessary, except where the failure to be
so qualified individually or in the aggregate is not having and could not
be reasonably expected to have a material adverse effect on the business,
assets, liabilities, results of operations, condition (financial or
otherwise) of the Company and its Subsidiaries (as defined in the Purchase
Agreement) taken as a whole (a "Company Material Adverse Effect"). The
Company has all requisite corporate power and authority to own, operate,
lease and encumber its assets and properties and carry on its business as
now conducted.
Each of the Company's Subsidiaries is a limited liability company,
corporation or partnership duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation or organization, has the
power and authority to own its assets and properties and to carry on its
business as it is now being conducted, and is duly qualified to do business and
is in good standing in each jurisdiction in which the ownership, lease or use of
its property or the conduct of its business requires such qualification, except
for jurisdictions in which such failure to be so qualified or to be in good
standing would not have a Company Material Adverse Effect.
True and correct copies of the Charter and the Bylaws of the Company (the
"Bylaws") have been made available to Warburg.
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(b) AUTHORITY RELATIVE TO AGREEMENTS. The execution, delivery and
performance of the Transaction Documents have been duly and validly
authorized by all necessary corporate action on the part of the Company.
This Agreement and the Purchase Agreement have been duly executed and
delivered by the Company for itself and upon Closing, the Registration
Rights Agreement shall be duly executed and delivered by it, and upon the
execution and delivery by the parties thereto, shall constitute the valid
and legally binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject to applicable bankruptcy,
insolvency, moratorium or other similar laws relating to creditors' rights
or general principles of equity.
SECTION 3.2. Warburg hereby represents and warrants to the Company and the
Stockholder as follows:
(a) ORGANIZATION. Warburg is a limited partnership duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization. It has all requisite partnership power and authority to own,
operate, lease and encumber its properties and to carry on its business as
now conducted, and to enter into the Transaction Documents and to perform
its obligations hereunder and thereunder.
(b) DUE AUTHORIZATION. The execution, delivery and performance of the
Transaction Documents have been duly and validly authorized by all
necessary partnership action on its part. This Agreement and the Purchase
Agreement have been duly executed and delivered by it and, upon the
Closing, the Registration Rights Agreement shall be duly executed and
delivered by it and, upon execution and delivery by the Company, constitute
the valid and legally binding obligations of it, enforceable against it in
accordance with their terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights or general principles of equity.
ARTICLE IV.
NEGATIVE COVENANTS
SECTION 4.1. CONDUCT OF BUSINESS BY LEGACY PRIOR TO CLOSING. During the
period from the date of this Agreement until the termination of this Agreement,
except as set forth in Exhibit A hereto or with respect to the Contemplated
Transactions (as defined in the Purchase Agreement) or as contemplated by this
Agreement or the Purchase Agreement, unless Warburg has consented in writing
thereto, which consent shall not be unreasonably withheld, each of Legacy and
its Subsidiaries shall use all commercially reasonable efforts to preserve
intact in all material respects their present business organizations, goodwill
reputation, to keep available the services of their key officers and employees,
to maintain their assets and properties in good working order and condition,
ordinary wear and tear excepted, to maintain insurance on their tangible assets
and businesses in such amounts and against such risks and losses as are
currently in effect, to preserve their relationships with ground lessors,
tenants and other occupiers of properties, customers, suppliers, lenders, joint
venture partners and others having significant business dealings with it and to
comply in all material respects with all laws and orders of all Governmental
Entities applicable to them, and Legacy shall not, nor permit any Legacy
Subsidiary, to:
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(a) incorporate or organize any new Subsidiary, unless such Subsidiary
shall be wholly owned, directly or indirectly, by such party and Warburg
shall receive prompt notice of such incorporation or organization;
(b) amend or propose to amend its Certificate of Incorporation or
By-Laws or any of its Subsidiaries' Charter Documents or permit the
amendment of its Certificate of Incorporation or By-Laws or of any Charter
Documents of its Subsidiaries;
(c) declare, set aside or pay any dividend other than in the ordinary
course of business and consistent with past practice or make any other
distribution or payment with respect to any shares of its capital stock,
except in connection with the use of shares of capital stock to pay the
exercise price or tax withholding in connection with stock-based employee
benefit plans of Legacy, directly or indirectly redeem, purchase or
otherwise acquire any shares of its capital stock or capital stock of any
of its Subsidiaries, or make any commitment for any such action;
(d) issue, deliver, sell or otherwise transfer or authorize or propose
the issuance, delivery, sale or other transfer of or permit Legacy or any
Legacy Subsidiary to issue, deliver, sell or otherwise transfer or
authorize or propose the issuance, delivery, sale or other transfer of, any
shares of capital stock of, or beneficial or other equity interests in,
such party or any of its Subsidiaries or Affiliates or any option with
respect thereto;
(e) except, with respect to loans or capital contributions to any of
Legacy's Subsidiaries that exist on the date hereof, to the extent (i)
required under the express terms of the Legacy's Certificate of
Incorporation or By-Laws or any Charter Documents applicable to any Legacy
Subsidiary or Affiliate or (ii) in the reasonable good faith judgment of
Legacy, as applicable, necessary under the circumstances to satisfy the
current cash needs of Legacy, its Affiliates or its Subsidiaries provide
funds to, or make any investment (in the form of a loan, capital
contribution or otherwise) in (or permit any of such Legacy Subsidiaries to
take any such action with respect to), any person;
(f) acquire (by merging or consolidating with, or by purchasing a
substantial equity interest in or a substantial portion of the assets of,
or by any other manner) any business or any corporation, partnership,
association or other business organization or division thereof with assets
(other than with respect to the Contemplated Transactions) in excess of
$25,000,000 or acquire any material assets in an amount which exceeds
$30,000,000 in the aggregate;
(g) mortgage or otherwise encumber or subject to any Encumbrance or
sell, lease or otherwise dispose of any of its material properties or
assets or assign or encumber the right to receive income, dividends,
distributions and the like;
(h) make or agree to make any new capital expenditures in excess of
$5,000,000 in the aggregate;
(i) incur (which shall not be deemed to include entering into credit
agreements, lines of credit or similar arrangements until borrowings are
made or committed to be borrowed under such arrangements) any indebtedness
for borrowed money or guarantee any such indebtedness, other than (i) such
debt incurred in connection with the projects set forth in Schedule 1.1 of
the Disclosure Letter under the heading "Debt Incurrence," (ii) to meet the
current cash needs of
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Legacy and its Subsidiaries business in an aggregate amount not to exceed
$25,000,000, to permit Legacy to perform its obligations hereunder or (iii)
to effect a redemption of indebtedness permitted by clause (j);
(j) voluntarily purchase, cancel, prepay or otherwise provide for a
complete or partial discharge in advance of a scheduled repayment date with
respect to, or waive any right under, or otherwise modify the provisions
of, any indebtedness, or guarantee of indebtedness, for borrowed money, or
permit Legacy or any Legacy Subsidiaries to take any such actions, other
than the redemption of indebtedness substantially from the proceeds of new
indebtedness, the provisions of which are not materially less advantageous
to the issuer thereof than those of, and the "ALL-IN" cost of which
(determined in accordance with sound financial practice) shall not exceed
that of, the indebtedness so redeemed;
(k) enter into, adopt, amend in any material respect (except as may be
required by applicable law) or terminate any Plan, as the case may be, or
grant any options, awards or other benefits or increase compensation,
except for normal increases in benefits and compensation in the ordinary
course of business consistent with past practice that, in the aggregate, do
not result in a material increase in benefits or compensation expense to
Legacy and Legacy Subsidiaries or amend or modify any employment agreement
with any officer of Legacy and, taken as a whole, grant any options, awards
or other benefits or increase the compensation of the officers of Legacy or
any Legacy Subsidiary for whom executive compensation disclosure would be
required to be made on a proxy statement for an annual meeting under
Regulation 14A under the Exchange Act and Item 402 of Regulation S-K
promulgated by the SEC (assuming for this purpose that each of Legacy and
the Legacy Subsidiaries are subject to such disclosure requirements);
(l) enter into any Contract, or amend or modify any existing Contract,
or engage in any new transaction outside the ordinary course of business
consistent with past practice, not on an arm's-length basis, or permit any
of Legacy or any Legacy Subsidiary to take such actions, with any Affiliate
of such party other than transactions among Legacy and the Legacy
Subsidiaries;
(m) make any change in the lines of business in which Legacy and its
Subsidiaries participate or are engaged;
(n) enter into any Contract, commitment or arrangement to do or engage
in any action the consummation of which would be prohibited by the
foregoing;
(o) make any changes in its accounting methods or policies except as
required by law, the SEC or generally accepted accounting principles;
(p) fail to maintain and cause its Subsidiaries to maintain insurance
in such amounts and against such risks as are customary for companies;
(q) obtain any equity or debt financing (including any private or
public offering of the Company's capital stock);
(r) except following an event of default thereunder, enter into any
voluntary termination of a Lease material to the shopping center to which
such Lease pertains, unless such Lease is
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promptly replaced by a lease with equal or greater value (including rent,
term and quality of tenant);
(s) make any material tax election or settle or compromise any
material liability for taxes;
(t) make any loan of money to or investment in, or purchase any equity
interest in, buy any property from or sell any property to, or enter into
any partnership or joint venture with the Company other than pursuant to
arrangements existing between the Company and Legacy set forth on Schedule
5.7 of the Disclosure Letter that have been disclosed to Buyer on the date
hereof, nor amend or waive any covenant, condition or provision of the
Merger Agreement or any of the other agreements contemplated thereby;
(u) amend or waive any term or provision or condition of the voting
agreements set forth in Schedule 5.7 of the Disclosure Letter in connection
with the Merger; or
(v) amend or waive any term, provision or condition in any Contract
with the Company.
ARTICLE V.
MISCELLANEOUS
SECTION 5.1. DEFINITIONS. Terms used but not otherwise defined in this
Agreement have the meanings ascribed to such terms in the Purchase Agreement.
SECTION 5.2. TERMINATION. This Agreement shall terminate and be of no
further force and effect (i) by the written mutual consent of the parties hereto
or (ii) automatically and without any required action of the parties hereto upon
the earlier of (A) closing of the Warburg Investment or (B) the termination of
the Purchase Agreement. No such termination of this Agreement shall relieve any
party hereto from any liability for any breach of this Agreement prior to
termination.
SECTION 5.3. FURTHER ASSURANCE. From time to time, at another party's
request and without consideration, each party hereto shall execute and deliver
such additional documents and take all such further action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transaction contemplated by this Agreement.
SECTION 5.4. CERTAIN EVENTS. The Stockholder agrees that this Agreement and
the Stockholder's obligations hereunder shall attach to the Stockholder's Shares
and shall be binding upon any person or entity to which legal or beneficial
ownership of such Shares shall pass, whether by operation of law or otherwise,
including, without limitation, the Stockholder's permitted successors and
assigns. Notwithstanding any transfer of Shares, the transferor shall remain
liable for the performance of all its obligations under this Agreement.
SECTION 5.5. NO WAIVER. The failure of any party hereto to exercise any
right, power, or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, any custom or practice of the
parties at variance with the terms hereof shall not constitute a waiver by
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such party of its right to exercise any such or other right, power or remedy or
to demand such compliance.
SECTION 5.6. SPECIFIC PERFORMANCE. The Stockholder acknowledges that if the
Stockholder fails to perform any of its obligations under this Agreement
immediate and irreparable harm or injury would be caused to the Company and
Warburg for which money damages would not be an adequate remedy. In such event,
the Stockholder agrees that each of the Company and Warburg shall have the
right, in addition to any other rights it may have, to specific performance of
this Agreement. Accordingly, if the Company or Warburg should institute an
action or proceeding seeking specific enforcement of the provisions hereof, the
Stockholder hereby waives the claim or defense that the Company or Warburg, as
the case may be, has an adequate remedy at law and hereby agrees not to assert
in any such action or proceeding the claim or defense that such a remedy at law
exists. The Stockholder further agrees to waive any requirements for the
securing or posting of any bond in connection with obtaining any such equitable
relief.
SECTION 5.7. NOTICE. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made (i) as of the date delivered or sent by facsimile if delivered
personally or by facsimile, (ii) on the first business day following the date of
such mailing, if mailed by overnight courier, and (iii) on the third business
day after deposit in the U.S. mail, if mailed by registered or certified mail
(postage prepaid, return receipt requested), in each case to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice, except that notices of changes of address shall be effective
upon receipt):
(a) If to the Company:
Price Enterprises, Inc.
00000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx and S. Xxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxx
00000 Xxxx Xxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
or at such other address and to the attention of such other person as the
Company may designate by written notice to Warburg and each Stockholder.
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(b) If to Warburg:
Warburg, Xxxxxx Equity Partners, L.P.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
(c) If to the Stockholder, at the address set forth below the
Stockholder's name on Schedule I hereto.
SECTION 5.8. EXPENSES. Except as otherwise expressly set forth herein or in
the Purchase Agreement, all fees, costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such fees, costs and expenses.
SECTION 5.9. HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 5.10. SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the maximum extent
possible.
SECTION 5.11. ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This
Agreement, the Purchase Agreement and the other Transaction Documents constitute
the entire agreement and supersede any and all other prior agreements and
undertakings, both written and oral, among the parties, or any of them, with
respect to the subject matter hereof, and this Agreement is not intended to
confer upon any other person any rights or remedies hereunder.
SECTION 5.12. ASSIGNMENT. Other than as contemplated by Section 1.2(b)
hereof, this Agreement shall not be assigned, by operation of law or otherwise,
by either party hereto and any attempted assignment of this Agreement other than
as provided in this Section 5.12 shall be null and void and of no effect.
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SECTION 5.13. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Maryland applicable to
contracts executed in and to be performed entirely within that State.
SECTION 5.14. AMENDMENTS AND WAIVERS. This Agreement may not be modified or
amended except by an instrument or instruments in writing signed by each of the
parties hereto. The parties hereto may, in their sole discretion and only by an
instrument in writing signed by each of the parties hereto, waive compliance by
any party hereto with respect to any term or provision hereof. The waiver of the
parties hereto of a breach of any term or provision hereof shall not be
construed as a waiver of any subsequent breach.
SECTION 5.15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which shall
constitute one and the same agreement.
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12
IN WITNESS WHEREOF, the Company, Warburg and the Stockholder
have caused this Agreement to be executed as of the date first written above.
PRICE ENTERPRISES, INC.
By: /s/ XXXXXXX X. XXXX
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Vice President
WARBURG, XXXXXX EQUITY PARTNERS, L.P.
By: /s/ XXXXXX X. XXXXXXXXX
-------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Partner
EXCEL LEGACY CORPORATION
By: /s/ S. XXXX XXXXXXX
-------------------------------
Name: S. Xxxx Xxxxxxx
Title: Senior Vice President
SCHEDULE I
Name and Address Number of Common Number of Series A
of Stockholder Shares Owned Preferred Shares Owned
---------------- ---------------- ----------------------
Excel Legacy Corporation 12,154,289 None
00000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
EXHIBIT A
The shares of Common Stock of Price Enterprises, Inc. held by Excel
Legacy Corporation ("Legacy") are pledged as security for Legacy's obligations
under (a) that certain Indenture, dated November 5, 1999, with respect to
Legacy's outstanding 10.0% Senior Redeemable Secured Notes due 2004, (b) that
certain Indenture, dated November 5, 1999, with respect to Legacy's outstanding
9.0% Convertible Redeemable Subordinated Secured Debentures due 2004 and (c)
that certain Note Purchase Agreement, dated October 6, 1999, with respect to
Legacy's outstanding Secured Promissory Note in favor of Xxx Xxxxx. The
transactions contemplated by this Voting Agreement are subject to the prior
rights of the collateral agents under the pledge agreements associated with such
transactions.
