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Exhibit 10.1
VOTING AGREEMENT
VOTING AGREEMENT dated as of August 21, 2000, among WESTERN
PROPERTIES TRUST, a California real estate investment trust ("WESTERN"), Revenue
Properties (U.S.), Inc., a Delaware corporation ("RPUS") and Pan Pacific
Development (Nevada) Inc., a Nevada corporation and a wholly-owned subsidiary of
RPUS ("PPD").
WHEREAS, Western and Pan Pacific Retail Properties, Inc., a
Maryland corporation ("PAN PACIFIC"), propose to enter into an Agreement and
Plan of Merger dated as of the date hereof, substantially in the form attached
hereto as EXHIBIT A (the "MERGER AGREEMENT"; capitalized terms used but not
defined herein shall have the meanings set forth in the Merger Agreement)
providing for the merger of Western with and into Pan Pacific (the "MERGER"),
upon the terms and subject to the conditions set forth in the Merger Agreement;
WHEREAS, RPUS and PPD collectively own 50.86% of the
outstanding common stock, par value $.01 per share, of Pan Pacific, together
with any other shares of capital stock of Pan Pacific acquired by RPUS and PPD
after the date hereof and during the term of this Agreement (including through
the exercise of any stock options, warrants or similar instruments), being
collectively referred to herein as the "SUBJECT SHARES"); and
WHEREAS, as a condition to its willingness to enter into the
Merger Agreement, Western has requested that RPUS and PPD enter into this
Agreement.
NOW, THEREFORE, to induce Western to enter into, and in
consideration of its entering into, the Merger Agreement, and in consideration
of the promises and the representations, warranties and agreements contained
herein, the parties agree as follows:
1. Representations and Warranties of RPUS and PPD. RPUS and
PPD represent and warrant to Western as of the date hereof in respect of itself
as follows:
(a) AUTHORITY. Each of RPUS and PPD has all requisite
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly authorized,
executed and delivered by RPUS and PPD and constitute a valid and binding
obligation of RPUS and PPD enforceable against RPUS and PPD in accordance
with its terms.
(b) THE SUBJECT SHARES. RPUS and PPD are the beneficial
owners of, and have good and valid title to, the Subject Shares, free and clear
of any liens or encumbrances whatsoever except those which impose no
restrictions on RPUS' or PPD's right to vote the Subject Shares. RPUS and PPD do
not own, of record or beneficially, any shares of capital stock of Pan Pacific
other than the Subject Shares. RPUS and PPD have the sole right to vote their
such Subject Shares, and none of such Subject Shares is subject to any voting
trust or other agreement, arrangement or restriction with respect to the voting
of such Subject Shares, except as contemplated by this Agreement. RPUS and PPD
represent that any proxies heretofore
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given in respect of RPUS' Subject Shares are not irrevocable, and that all such
proxies are hereby revoked.
2. REPRESENTATIONS AND WARRANTIES OF WESTERN. Western hereby
represents and warrants to RPUS and PPD that Western has all requisite corporate
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly authorized,
executed and delivered by Western and constitutes a valid and binding obligation
of Western enforceable against Western in accordance with its terms.
3. COVENANTS OF RPUS AND PPD. Until the termination of this
Agreement in accordance with Section 8, RPUS and PPD agree as follows:
(a) At any meeting of the stockholders of Pan Pacific
called to vote upon the Merger and the Merger Agreement, or at any annual
meeting at which such matters are voted upon, and at any adjournment thereof or
in any other circumstances upon which a vote, consent or other approval with
respect to the Merger and the Merger Agreement is sought, RPUS and PPD shall
vote (or cause to be voted) the Subject Shares in favor of the Merger, the
adoption by Pan Pacific of the Merger Agreement and the approval of the terms
thereof and each of the other transactions contemplated by the Merger Agreement.
(b) RPUS and PPD shall not, nor shall they permit any of
their respective directors, officers, partners, employees or agents or any
investment banker, attorney or other adviser or representative of RPUS and PPD
to, directly or indirectly, cause any of the representations set forth in
Section 1 hereof to become untrue.
4. GRANT OF IRREVOCABLE PROXY; ATTORNEY-IN-FACT; APPOINTMENT
OF PROXY.
(a) RPUS and PPD hereby irrevocably grant to, and appoint
Brad Blake and Dennis Ryan, in their capacity as officers of Western, and any
individual who shall hereafter succeed to their respective offices of Western,
and each of them individually, RPUS' and PPD's proxy and attorney-in-fact (with
full power of substitution), for and in the name, place and stead of RPUS and
PPD, to vote RPUS' and PPD's Subject Shares, or grant a consent or approval in
respect of such Subject Shares, in favor of adoption of the Merger Agreement and
the related transactions contemplated by the Merger Agreement.
(b) RPUS and PPD hereby affirm that the irrevocable proxy
set forth in this Section 4 is given in connection with the execution of the
Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of RPUS and PPD under this Agreement. RPUS and PPD
hereby further affirm that the irrevocable proxy is coupled with an interest,
and may under no circumstances be revoked. RPUS and PPD hereby ratify and
confirm all that such irrevocable proxy may lawfully do or cause to be done by
virtue hereof.
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5. FURTHER ASSURANCES. RPUS and PPD will, from time to
time, execute and deliver, or cause to be executed and delivered, such
additional or further consents, documents and other instruments as Western may
reasonably request for the purpose of effectively carrying out the transactions
contemplated by this Agreement.
6. CERTAIN EVENTS. RPUS and PPD agree that this Agreement
and the obligations hereunder shall attach to the Subject Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of the
Subject Shares shall pass, whether by operation of law or otherwise, including
RPUS' and PPD's successors. In the event of any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of Pan Pacific affecting the capital stock, or the acquisition of
additional shares of capital stock or other voting securities of Pan Pacific by
RPUS or PPD, the number of Subject Shares shall be adjusted appropriately and
this Agreement and the obligations hereunder shall attach to any additional
shares of capital stock or other voting securities of Pan Pacific issued to or
acquired by RPUS and PPD.
7. ASSIGNMENT. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by RPUS or PPD, on
the one hand, without the prior written consent of Western nor by Western, on
the other hand, without the prior written consent of RPUS and PPD, except that
Western may assign, in its sole discretion, any or all of its rights, interests
and obligations hereunder to any direct or indirect wholly owned subsidiary of
Western. Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns.
8. TERMINATION. This Agreement shall terminate on the
earlier of (i) the Effective Time or (ii) the date upon which the Merger
Agreement is terminated in accordance with its terms. If the Merger Agreement is
not entered into, this document shall be of no force and effect.
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9. GENERAL PROVISIONS.
(a) AMENDMENTS. This Agreement may not be amended except
by an instrument in writing signed by each of the parties hereto.
(b) NOTICE. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered personally
or sent by overnight courier (providing proof of delivery) to Western in
accordance with Section 9.2 of the Merger Agreement and to RPUS and PPD at 131
Bloor Street West, Suite 300, Toronto, Ontario, Canada M5S 1R1 (or at such other
address for RPUS and PPD as shall be specified in like notice).
(c) INTERPRETATION. When a reference is made in this
Agreement to Sections, such reference shall be to a Section to this Agreement
unless otherwise indicated. 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. Wherever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation."
(d) COUNTERPARTS. This Agreement may be executed in one
or more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more of the counterparts have
been signed by each of the parties and delivered to the other party, it being
understood that each party need not sign the same counterpart.
(e) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This
Agreement (including the documents and instruments referred to herein) (i)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof and (ii) is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.
(f) GOVERNING LAW. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Maryland regardless
of the laws that might otherwise govern under applicable principles of conflicts
of law thereof.
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10. SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule or law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect. 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 to the fullest
extent permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
[SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, Western has caused this Agreement to be
signed by its officer thereunto duly authorized and RPUS and PPD have caused
this Agreement to be signed by their respective officers thereunto duly
authorized, all as of the date first written above.
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WESTERN PROPERTIES TRUST,
A CALIFORNIA REAL ESTATE INVESTMENT TRUST
By: /S/ BRADLEY BLAKE
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Bradley Blake, Chief Executive Officer
By: /S/ DENNIS RYAN
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Dennis Ryan, Chief Financial Officer
REVENUE PROPERTIES (U.S.) INC.,
A DELAWARE CORPORATION
By: /S/ PAUL D. CAMPBELL
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Paul D. Campbell, President
By: /S/ PAUL W. HELLEN
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Paul W. Hellen, Secretary
PAN PACIFIC DEVELOPMENT
(NEVADA) INC., A NEVADA CORPORATION
By: /S/ PAUL D. CAMPBELL
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Paul D. Campbell, President
By: /S/ PAUL W. HELLEN
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Paul W. Hellen, Secretary
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[Signature Page to the Voting Agreement]
