NON-COMPETITION AGREEMENT
THIS AGREEMENT, made as of _________________, 1997, by and among
Revenue Properties Company Limited, a corporation organized under the laws of
Ontario, Canada ("Revenue Properties"), Pan Pacific Development (U.S.) Inc., a
Delaware corporation ("PPD") and Pan Pacific Retail Properties, Inc., a Maryland
corporation (the "Company"), is based upon the following premises:
A. The Company has filed a registration statement on Form S-11 with
the Securities and Exchange Commission, pursuant to which it expects to complete
an initial public offering of its shares of common stock (the "Offering").
B. In connection with the Offering and the transactions related
thereto, PPD and certain of its subsidiaries will receive shares of common stock
of the Company, resulting in PPD's owning a majority of the outstanding shares
of common stock of the Company.
C. In connection with the receipt by PPD and certain of its
subsidiaries of shares of common stock of the Company, Revenue Properties and
PPD have agreed to execute a non-competition agreement with the Company whereby
Revenue Properties and PPD each agree to conduct all of their United States
shopping center development and ownership activities through the Company so long
as PPD owns 15% or more of the outstanding shares of common stock of the Company
and to refrain from separately carrying on a business similar to and in
competition with the business conducted by the Company upon completion of the
Offering.
D. Upon completion of the Offering, the Company will be engaged in
the business of acquiring, owning, developing, managing and leasing shopping
center properties in certain geographical areas in the United States (the
"Company's Business").
For and in consideration of the foregoing premises and of the mutual
promises contained herein, the parties agree as follows:
ARTICLE I
NON-COMPETITION
Section 1.1 COVENANT NOT TO COMPETE.
(a) So long as PPD owns 15% or more of the outstanding shares of
common stock of the Company, calculated on a fully diluted basis, Revenue
Properties and PPD shall not engage in Competition (as defined below) with the
Company or any of its subsidiaries.
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(b) For purposes of this Agreement, the term "Competition" shall mean
conducting, directly or indirectly, any development, acquisition or management
activity with respect to community or neighborhood shopping center properties in
the Butte, Marin, Sacramento, San Mateo, Santa Xxxxx and Sonoma counties of
Northern California, the Orange, Riverside, San Bernardino and San Diego
counties of Southern California, the Las Vegas metropolitan area in Nevada, the
Maysville seven-county area in Kentucky, the Seattle metropolitan area in
Washington, the Portland metropolitan area in Oregon, the Orlando metropolitan
area in Florida, the Memphis metropolitan area in Tennessee, the Albuquerque
metropolitan area in New Mexico or in any other market in which the Company (or
any successor of the Company) or any of its subsidiaries owns, develops or
manages property (collectively, the "Restricted Area") other than through the
Company; provided, however, that Revenue Properties and PPD shall each be
permitted to acquire a stock interest in such a corporation provided such stock
is publicly traded and the stock so acquired is not more than five percent (5%)
of the outstanding shares of such corporation.
Section 1.2 ENFORCEMENT OF FOREGOING PROVISIONS.
(a) It is the intention of the parties hereto that Section
1.1 shall be fully enforceable as set forth herein. To the extent
that any court of competent jurisdiction finds that any such covenant
is unenforceable by reason of its duration or scope, the parties
hereto agree that it shall be enforced insofar as it may be enforced
within the limits of the law of that jurisdiction, but that this
Agreement as a whole shall be unaffected elsewhere.
(b) This Agreement shall be enforceable against Revenue
Properties and PPD. The parties recognize that the remedy at law for
breach of any of Section 1.1 hereof is inadequate and the Company
shall be entitled, in addition to such other remedies as it may have,
to a temporary restraining order and preliminary and permanent
injunctive relief to enjoin any breach or threatened breach of any of
Section 1.1 without proof of any actual damages that have been or may
have been caused to them by such breach.
ARTICLE II
REFERRALS
So long as PPD owns 15% or more of the outstanding shares of common stock
of the Company, Revenue Properties and PPD hereby agree to refer to the Company
all opportunities they may receive relating to the Company's Business in the
Restricted Area.
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ARTICLE III
MISCELLANEOUS
Section 3.1 LAW TO GOVERN.
The validity, construction and enforceability of this Agreement
shall be governed in all respects by the internal laws of California without
regard to its conflict of laws rules.
Section 3.2 ASSIGNMENT.
Neither this Agreement nor any right or obligation hereunder is
assignable in whole or in part, whether by operation of law or otherwise, by
either party without the express written consent of the other party, and any
such attempted assignment shall be void and unenforceable, provided, however,
that this Agreement may be assigned to, and shall thereafter be binding upon and
inure to the benefit of, any successor of the Company and any such successor
shall be deemed substituted for the Company under the terms of this Agreement.
The term successor as used herein shall include any person, firm, corporation or
other business entity which at any time, by merger, consolidation, purchases or
otherwise, acquires all or substantially all of the assets, stock, or business
of the Company.
Section 3.3 NO WAIVER OF RIGHTS.
All waivers hereunder must be made in writing, and failure at any
time to require the other party's performance of any obligation under this
Agreement shall not affect the right subsequently to require performance of that
obligation. Any waiver of any breach of any provision of this Agreement shall
not be construed as a waiver of any continuing or succeeding breach of such
provision or a waiver or modification of the provision.
Section 3.4 NOTICE. For the purposes of this Agreement, notices, demands and
all other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given (i) when personally delivered, (ii) when
transmitted by facsimile, electronic or digital transmission with receipt
confirmed, (iii) one day after delivery to a nationally recognized overnight air
courier guaranteeing next day delivery, or (iv) upon receipt if sent by
certified or registered mail. In each case, notice shall be sent to:
If to Revenue Properties Revenue Properties Company, Ltd.
or PPD: The Colonnade
000 Xxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxx X0X 0X0
Attention: Legal
Facsimile: (000) 000-0000
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If to the Company: Pan Pacific Retail Properties, Inc.
0000-X Xxxxx Xxxxxxx Xxxxx
Xxxxx, XX 00000
Attention: Secretary
Facsimile: (000) 000-0000/1534
Section 3.5 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
REVENUE PROPERTIES COMPANY LIMITED
By
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Name:
Its:
By
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Name:
Its:
PAN PACIFIC DEVELOPMENT (U.S.) INC.
By
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Name:
Its:
By
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Name:
Its:
PAN PACIFIC RETAIL PROPERTIES, INC.
By
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Xxxxxx X. Xxxx
Chief Executive Officer and President
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