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EXHIBIT 5
March 31, 2000
Excel Legacy Corporation
17140 Bernardo Center Drive, Suite 300
San Diego, California 92128
Re: AMENDMENT TO NOTE PURCHASE AGREEMENT
Gentlemen:
This Amendment will confirm our agreement to amend the Note Purchase
Agreement dated October 6, 1999 (the "AGREEMENT") between Legacy and Lender and
the Note issued under the Agreement. Capitalized terms used and not otherwise
defined herein are used with the meanings assigned to them in the Agreement.
1. RELATION TO AGREEMENT. Except as hereby amended, the Agreement shall
continue in full force and effect.
2. PREPAYMENT IN PART OF OUTSTANDING BORROWINGS. The parties hereby agree
that $18,000,000 (the "PREPAYMENT AMOUNT") of the $27,347,150.25 in principal
outstanding under the Note as of the date hereof shall be deemed prepaid under
Section 2.C. of the Agreement upon Legacy's issuance to Lender of 5,100,000
shares of Legacy's Common Stock, par value $0.01 per share (the "SHARES").
Notwithstanding any requirement that payment of outstanding borrowings under the
Agreement or the Note be made in cash, upon issuance of the Shares, principal
borrowings under the Note in an amount equal to the Prepayment Amount shall be
deemed paid-in-full, and Lender agrees to make appropriate notation on the grid
attached to the Note reflecting such prepayment.
3. REPRESENTATIONS OF LENDER. Lender represents to Legacy as follows:
- Lender has all requisite power and authority to execute and
deliver this Amendment and to consummate the transactions
contemplated hereby and to perform its obligations hereunder.
This Amendment constitutes a legally valid and binding
obligation of Lender, enforceable against Lender in accordance
with its terms.
- Lender is an "accredited investor" as defined in Rule 501(a)
of Regulation D under the Securities Act of 1933, as amended
(the "SECURITIES ACT").
- The Shares are being acquired by Lender for its own account,
not as a nominee or agent, and not with a view to the sale or
other disposition of any part thereof, and Lender has no
present intention of selling, granting any participation in,
or otherwise disposing of the Shares or any interest therein.
- Lender is acquiring the Shares hereunder "solely for the
purpose of investment" within the meaning of Section
801.1(i)(1) under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended, with no intention of participating in
the formulation, determination or direction of the basic
business decisions of Legacy.
- Lender understands that the exemptions from registration and
certain government approvals relied upon by Legacy depend
upon, among other things, the bona fide nature of Lender's
investment intent expressed above and Lender's other
representations herein.
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- Upon Lender's receipt of Legacy's irrevocable instruction to
its transfer agent to issue 5.1 million shares to Lender,
Lender agrees to immediately release 4,363,522 of the
7,272,538 PEI shares which had been previously pledged as
security under the Agreement.
4. REPRESENTATIONS OF LEGACY. Legacy represents to Lender as follows:
- Legacy has all requisite corporate power and authority to
execute and deliver this Amendment and to consummate the
transactions contemplated hereby and to perform its
obligations hereunder. The execution, delivery and performance
by Legacy of this Amendment has been duly authorized by all
necessary corporate action of Legacy. This Amendment
constitutes a legally valid and binding obligation of Legacy,
enforceable against Legacy in accordance with its terms.
- The Shares to be issued and delivered under the Amendment will
be duly and validly issued, fully paid and nonassessable.
5. REGISTRATION RIGHTS. The parties agree to enter into a Registration
Rights Agreement in the form attached hereto as Exhibit A.
6. EFFECT ON FUTURE BORROWINGS. Although Lender acknowledges that Legacy
has the right to borrow an additional $2,652,849.75 under the Agreement as
provided in, and subject to the terms and conditions of, the Agreement, nothing
herein shall constitute consent from Lender to payment of any amounts borrowed
under the Agreement in the form of shares of Common Stock of Legacy other than
the Prepayment Amount.
7. FURTHER ASSURANCES. The parties hereto agree to use all reasonable
efforts to take, or cause to be taken and to do, or cause to be done, all things
necessary, proper or advisable to consummate and make effective as promptly as
practicable the transactions contemplated by this Amendment.
8. MISCELLANEOUS. This Amendment shall be governed and construed on the
same basis as the Agreement, as set forth therein. This Amendment may be
executed in counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
[Signatures Follow]
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If the foregoing provisions accurately reflect our agreement, please so
indicate by executing this Amendment as indicated in the space below, at which
point it shall become binding between us.
Very truly yours,
The Sol and Helen Price Trust
By: /s/ SOL PRICE
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Name: SOL PRICE
-----------------------
Title: TRUSTEE
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Accepted and Agreed:
Excel Legacy Corporation
By: /s/ S. ERIC OTTESEN
-------------------------
Name: S. ERIC OTTESEN
-----------------------
Title: SENIOR VICE PRESIDENT
----------------------
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May 18, 2000
Excel Legacy Corporation
17140 Bernardo Center Drive, Suite 300
San Diego, California 92128
Re: SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT
Gentlemen:
This Second Amendment will confirm our agreement to amend the Note
Purchase Agreement dated October 6, 1999, as amended March 31, 2000 (the "FIRST
AMENDMENT," and together with the Note Purchase Agreement, the "AGREEMENT")
between Legacy and Lender. Capitalized terms used and not otherwise defined
herein are used with the meanings assigned to them in the Agreement.
1. RELATION TO AGREEMENT. Except as hereby amended, the Agreement shall
continue in full force and effect. To the extent any amendment herein or in the
First Amendment to the Pledge Agreement attached hereto as Exhibit A shall
modify the definition of any term contained in the Agreement, such modified
definition shall apply to the Agreement.
2. RELEASE OF PEI SHARES.
a) The parties acknowledge that pursuant to paragraph six of
Section 3 of the First Amendment Lender agreed to release
4,363,522 of the 7,272,538 PEI shares that had been previously
pledged by Legacy as security under the Agreement.
b) The parties acknowledge that both numbers relating to the PEI
shares (i.e., 4,363,522 and 7,272,538) identified in paragraph
six of Section 3 of the First Amendment were incorrect. The
parties hereby agree that the correct number of PEI shares to
be released hereunder shall be 4,016,940 of the 6,102,880 PEI
shares that had been previously pledged by Legacy as
collateral under the Agreement.
c) Lender hereby acknowledges and confirms that, in accordance
with Section 3 of the First Amendment, Legacy has issued 5.1
million shares of common stock of Legacy, par value $0.01 per
share, and Lender accordingly has released the security
interest granted in favor of Lender in 4,016,940 of the
6,102,880 PEI shares that had been previously pledged by
Legacy as security under the Agreement.
3. FURTHER ASSURANCES. In order to more fully evidence Lender's release of
the 4,016,940 PEI shares, the parties hereto agree to use all reasonable efforts
to take, or cause to be taken, and to do, or cause to be done, all things
necessary, proper or advisable to consummate and make effective as promptly as
practicable the transactions contemplated by this Second Amendment, including,
without limitation, the following:
- Lender shall cause James F. Cahill (the "PRICE NOTE COLLATERAL
AGENT") to execute the First Amendment to Pledge Agreement in
the form attached hereto as Exhibit A.
- Lender shall cause the Price Note Collateral Agent to
surrender, or cause to be surrendered, to the transfer agent
of PEI (the "TRANSFER AGENT") Share Certificate Number 0045
(the "SHARE Certificate"), which certifies that Legacy is the
owner of 6,102,880 shares of PEI
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common stock, and surrender, or cause to be surrendered, to
Legacy that certain Assignment Separate from Certificate dated
November 11, 1999.
- Promptly following surrender of the Share Certificate by the
Price Note Collateral Agent to the Transfer Agent and the
Assignment Separate from Certificate to Legacy, Legacy shall
cause to be delivered to the Price Note Collateral Agent a
certificate that certifies that Legacy is the owner of
2,085,940 shares of PEI common stock, together with an
executed Assignment Separate from Certificate with respect to
such shares.
- Lender (or the Price Note Collateral Agent on behalf of
Lender) and Legacy shall execute and file with the California
Secretary of State a Form UCC-2, in the form attached hereto
as Exhibit B.
- The parties shall attach a grid in the form attached hereto as
Exhibit C to the Secured Promissory Note as contemplated by
the Agreement and the Secured Promissory Note.
4. REPRESENTATIONS OF LENDER.
a) Lender represents to Legacy that Lender has all requisite
power and authority to execute and deliver this Second Amendment and to
consummate the transactions contemplated hereby and to perform its obligations
hereunder. This Second Amendment constitutes a legally valid and binding
obligation of Lender, enforceable against Lender in accordance with its terms.
b) Lender represents, warrants and covenants that the 4,016,940
PEI shares released by Lender shall be returned to Legacy free and clear of any
claims of interests of any party arising through Lender.
5. REPRESENTATION OF LEGACY. Legacy represents to Lender that Legacy has
all requisite corporate power and authority to execute and deliver this Second
Amendment and to consummate the transactions contemplated hereby and to perform
its obligations hereunder. The execution, delivery and performance by Legacy of
this Second Amendment have been duly authorized by all necessary corporate
action of Legacy. This Second Amendment constitutes a legally valid and binding
obligation of Legacy, enforceable against Legacy in accordance with its terms.
6. MISCELLANEOUS. This Second Amendment shall be governed and construed on
the same basis as the Agreement, as set forth therein. This Second Amendment may
be executed in counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
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If the foregoing provisions accurately reflect our agreement, please so
indicate by executing this Second Amendment as indicated in the space below, at
which point it shall become binding between us.
Very truly yours,
The Sol and Helen Price Trust
By: /s/ SOL PRICE
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Name: Sol Price
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Title: Trustee
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Accepted and Agreed:
Excel Legacy Corporation
By: /s/ S. ERIC OTTESEN
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Name: S. Eric Ottesen
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Title: Senior Vice President
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EXHIBIT A
FIRST AMENDMENT TO PLEDGE AGREEMENT
This FIRST AMENDMENT TO PLEDGE AGREEMENT (this "AMENDMENT") is made and
entered into as of May __, 2000, by and between Excel Legacy Corporation, a
Delaware corporation (the "PLEDGOR"), and James F. Cahill (the "PRICE NOTE
COLLATERAL AGENT"), as collateral agent in favor of the Holders (the "HOLDERS")
of the Pledgor's Secured Promissory Note issued pursuant to that certain Note
Purchase Agreement by and between the Pledgor and the Sol and Helen Price Trust
dated as of October 6, 1999.
RECITALS
WHEREAS, the Pledgor made and entered into that certain Pledge
Agreement (the "PLEDGE AGREEMENT") as of October 6, 1999 in favor of the Price
Note Collateral Agent, as collateral agent in favor of the Holders; and
WHEREAS, the Pledgor and the Price Note Collateral Agent, with the
consent of the Holders, desire to amend certain terms and provisions of the
Pledge Agreement as set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Pledgor and the Price Note Collateral Agent amend
the Pledge Agreement as follows:
1. RELATION TO PLEDGE AGREEMENT. Except as hereby amended, the
Pledge Agreement shall continue in full force and effect.
2. CAPITALIZED TERMS. Capitalized terms used and not otherwise
defined herein are used with the meaning attributed to them in the Pledge
Agreement.
3. PLEDGE. Section 1(b) of the Pledge Agreement is hereby amended
and restated as follows:
(b) all additional shares of, and all securities
convertible into and all warrants, options or other rights to
purchase, Common Stock of the Issuer from time to time
acquired after the date of this Amendment by the Pledgor in
any manner, and the certificates representing such additional
shares (any such additional shares and other items shall
constitute part of the Price Note Pledged Shares under and as
defined in this Agreement), and all products and proceeds of
any of the foregoing, including, without limitation, all
dividends, cash, options, warrants, rights, instruments,
subscriptions, and other property or proceeds from time to
time received, receivable or otherwise distributed in respect
of or in exchange for any or all of the foregoing.
A-1
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4. SCHEDULE I. Schedule I to the Pledge Agreement is hereby
amended and restated as follows:
SCHEDULE I
PLEDGED SHARES
<TABLE>
<CAPTION>
NUMBER OF PRICE NOTE SHARE CERTIFICATE
ISSUER PLEDGED SHARES(1) NUMBER(S)
------ -------------------- -----------------
<S> <C> <C>
Price Enterprises, Inc. 3,918,939 0830
Price Enterprises, Inc. 2,132,470 0831
Price Enterprises, Inc. 2,085,940 [0__]
</TABLE>
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(1) Notations shall be made from time to time on this Schedule I by the parties
to the Pledge Agreement with respect to any Price Note Pledged Shares which are
the subject of any Debentures Collateral Identification Certificate or Senior
Notes Collateral Identification Certificate and upon redelivery, if applicable,
of any shares that were previously the subject of any such certificates.
A-2
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5. REPRESENTATION OF THE PRICE NOTE COLLATERAL AGENT. The Price
Note Collateral Agent Lender represents to the Pledgor that the Price Note
Collateral Agent has all requisite power and authority to execute and deliver
this Amendment and to consummate the transactions contemplated hereby and to
perform its obligations hereunder. This Agreement constitutes a legally valid
and binding obligation of the Price Note Collateral Agent, enforceable against
the Price Note Collateral Agent in accordance with its terms.
6. REPRESENTATION OF THE PLEDGOR. The Pledgor represents to the
Price Note Collateral Agent that the Pledgor has all requisite corporate power
and authority to execute and deliver this Amendment. The execution, delivery and
performance by the Pledgor of this Amendment have been duly authorized by all
necessary corporate action of the Pledgor. This Amendment constitutes a legally
valid and binding obligation of the Pledgor, enforceable against the Pledgor in
accordance with its terms.
7. FURTHER ASSURANCES. The parties hereto agree to use all
reasonable efforts to take, or cause to be taken and to do, or cause to be done,
all things necessary, proper or advisable to consummate and make effective as
promptly as practicable the transactions contemplated by this Amendment.
8. MISCELLANEOUS. This Amendment shall be governed and construed
on the same basis as the Pledge Agreement, as set forth therein. This Amendment
may be executed in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment on
the date first set forth above.
PLEDGOR
EXCEL LEGACY CORPORATION,
a Delaware Corporation
By:
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Name:
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Title:
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PRICE NOTE COLLATERAL AGENT
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JAMES F. CAHILL,
as Price Note Collateral Agent
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