EXCLUSIVE LEASING LISTING AGREEMENT
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THIS EXCLUSIVE LEASING LISTING AGREEMENT (the "Agreement") is entered into
as of September 9, 1999, by and between PEMBROKE SUPERVISORY MANAGEMENT LLC
("Agent") and COLLIERS INTERNATIONAL ("Broker"), with reference to the following
facts:
A. High Cash Partners, L.P. ("Landlord") is the current owner of the building
commonly known as Sierra Marketplace located at 0000 Xxxxx Xxxxxxxx, Xxxx,
Xxxxxx 00000, (the "Building") and has retained Agent to perform leasing
services with respect to the Building.
B. Agent desires to retain Broker to act as the exclusive broker with respect to
the Building. It is contemplated that Broker will seek out tenants in the
conduct of its brokerage business and will deal with parties ("Prospective
Tenants") contemplating the leasing of space in the Building, and also to
provide a local representative to deal with existing tenants contemplating
renewals and/or expansions of their leases.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
contained herein, it is agreed as follows:
1. Available Space; Renewal Space; Expansion Space. This Agreement shall
apply (i) to that space in all of the Building which (a) as of the date of this
Agreement, is not subject to terms of any lease, license agreement or other such
document and does not comprise a common area such as the lobby areas, garages or
parking areas, elevators, stairways, vestibules, rest rooms, public corridors,
halls, and roof, or (b) as to leased space the current tenancy with respect to
which expires or is terminated, and the space is vacated, before the termination
or expiration of this Agreement (such space as described in (a) and (b) being
referred to in the aggregate as the "Available Space"), and (ii) to existing
tenants in the Building ("Existing Tenants") in the case of renewals of leases
or expansions by Existing Tenants beyond the space then leased into a portion of
the Available Space (such space being referred to as the "Renewal Space" in the
case of lease renewals and the "Expansion Space" in the case of lease
expansions). However, it is expressly understood that such "Renewal Space" or
"Expansion Space" that is subject to an existing option not negotiated by Broker
is not subject to the terms of this Agreement.
2. Term. The term of this Agreement shall commence as of the date hereof
and shall expire December 31, 2002, subject to extension by mutual agreement of
the parties, and subject to termination, as provided in Paragraph 16 hereof.
During the term hereof, Broker shall be the exclusive broker for the Building
and Broker shall earn a commission as provided herein on any lease entered with
respect to any of the Available Space, or on any renewal or expansion with
respect to Renewal Space or Expansion Space unless otherwise provided herein,
whether such lease be made or Tenant procured by Broker, or by Landlord or
Agent, or by any other person. All inquiries and offerings received by Agent
shall be referred to Broker and all negotiations shall be conducted solely by
Broker or under Broker's direction, subject to final approval by
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Agent. Agent shall cause Landlord to also refer all inquiries and offers
received by Landlord to Broker.
3. Broker's Duty and Representing Agents. Broker agrees that, during the
term of this Agreement, the primary representing agents shall be Xxxx Xxxxxxxxx
and Xxxxx Xxxxx ("Representing Agent"). The Representing Agent's primary duty
within this Agreement (including the primary assignment of any other
representing agents or sales persons employed by Broker) shall be the leasing of
the Available Space. The Broker's primary duties shall include the leasing of
Renewal Space and Expansion Space, as well as handling any "walk-in" business
from Prospective Tenants and otherwise assisting, as reasonably requested by
Agent, in the marketing of the Available Space at the Building. Notwithstanding
the foregoing, Broker shall have no obligations to negotiate any lease nor to
devote efforts to leasing space in connection with any transaction not earning a
commission as described in Paragraph 7 below.
4. Leasing Parameters. Agent shall specify the leasing parameters for each
portion of the Available Space, the Renewal Space and the Expansion Space
subject to change from time to time at Agent's direction. All leases shall be
executed on Agent's standard form, attached hereto as Exhibit "B", with all
appropriate Riders and Exhibits attached thereto, or on such other form as the
respective Agent on behalf of Landlord may adopt from time to time. When
negotiating a lease with a Prospective Tenant, Broker shall not vary from the
parameters specified by Agent without the prior express written consent of
Agent. In any event, even if a Prospective Tenant has signed a proposed lease
complying with the leasing parameters, the lease shall not be effective unless
and until the lease has been submitted to Agent's office and has been approved
and fully executed on behalf of Landlord. Broker shall clearly explain to each
Prospective Tenant that no lease signed by Prospective Tenant shall have any
effect until the provisions of this Paragraph 4 have been satisfied.
5. Reporting.
5.1 Broker shall keep Agent fully advised as to the status of
negotiations with each Prospective Tenant. Broker shall submit a written report
to the Agent, no less frequently than monthly, itemizing each Prospective Tenant
and indicating the activity and any relevant events occurring during the
preceding month and also periodically confer with Agent concerning marketing
problems encountered and suggestions to improve the marketability of the
Available Space, progress of construction of improvements in the Available Space
for the use by Prospective Tenants, and similar matters. All advertising
relating to the Building shall be determined by and be at the expense of Agent
on behalf of Landlord, subject to written guidelines which shall be approved by
Agent. Representing Agent of Broker shall be available from time to time upon
reasonable notice to confer with Agent. Broker will assist Agent in the
preparation of its property budget as it relates to income, lease-up, market
conditions, promotions, etc. Broker's non-material failure to comply with the
requirements of this Section 5.1 shall not bar Broker from receiving commissions
that Broker is otherwise entitled to.
5.2 In the event any Prospective Tenant indicates its unwillingness to
execute a lease complying with the leasing parameters as contemplated in
Paragraph 4 above, Broker
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shall forward all offers and counteroffers to Agent. When a Prospective Tenant
has agreed to the execution of a lease, Broker shall notify the property
manager, and shall arrange to have the lease prepared. Upon execution by a
Prospective Tenant of a proposed lease, Broker shall deliver four (4) signed
copies thereof to Agent's office for approval and execution on behalf of the
Landlord.
6. Rate of Commission and Time Payment. If a binding written lease is
entered into between a Prospective Tenant and Agent on behalf of Landlord for
any portion of the Available Space or between an Existing Tenant for Renewal
Space or Expansion Space, except as expressly excluded in this Agreement, then,
with the exception of those transactions expressly excluded under Paragraph 1
and 7, Agent agrees to pay to Broker a leasing commission computed in accordance
with the schedule attached hereto as Exhibit "C."
7. Transactions Not Earning a Commission. No commission or brokerage or
other fee of any sort shall be payable by Agent to Broker by reason of (a) any
lease with Landlord, Landlord's subsidiary companies or any affiliate companies
of Landlord or Agent in any space in the Building or (b) the exercise by any
existing tenant in the Building of any option under its present lease if such
existing lease was not procured by Broker. Broker shall receive no compensation
for any leases which are presently being negotiated by Agent, which prospects
are described on Exhibit "D" hereto. No commission shall be earned or paid if
otherwise excluded in this document.
8. Sharing of Commissions. Broker and Agent acknowledge that, in certain
cases, Broker may effect the signing of a lease by Agent on behalf of Landlord
and a Prospective Tenant only with the assistance or cooperation of another
broker (an "Outside Broker"). In such a case, if the conditions set forth herein
are otherwise satisfied, Broker understands that Agent shall be obligated to pay
only one full commission referred to in Paragraph 6 above, and the Outside
Broker shall be entitled to a commission equal to 100% of the commission
referred to in Paragraph 6 above, computed as specified in Exhibit "C" to this
Agreement, which Broker agrees to share with the Outside Broker. Broker
expressly agrees that in no circumstances shall Broker or any of its principals,
or any relative of Broker, or any entity controlled by Broker and/or any of its
principals or any relatives of any of them (a "Related Broker") enter into any
agreement with an Outside Broker whereby Broker or any Related Broker shall
receive any portion of a commission earned by an Outside Broker for the leasing
of any Available Space or Renewal Space or Expansion Space, nor shall any
Related Broker be recognized as an Outside Broker.
9. Previous Space and Cash Payments. If the lease or any agreement
collateral to or affecting the lease shall provide that the Landlord or any
parent corporation or entity of the Landlord or any subsidiary or affiliated
corporations or entities of the Landlord or of such parent corporation or entity
(a) shall be required to assume any of the Prospective Tenant's obligations
under any lease covering any space occupied by the Prospective Tenant in any
other building (hereinafter referred to as "Previous Space"), or (b) shall be
required, directly or indirectly, to indemnify the Prospective Tenant as to any
obligations respecting its Previous Space; then to the extent payment is made by
Landlord under either clause (a) or (b) above, that payment shall be treated as
an abatement of rent and the provisions of Paragraph 4 of Exhibit "C" shall
apply thereto. To the extent the Previous Space becomes available to the
Landlord for assigning or
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subletting, the Previous Space shall thereupon be deemed to constitute Available
Space, the assigning or subleasing of which shall earn a commission for Broker
hereunder if the other conditions of this Agreement are satisfied.
10. No Commission If Lease Not Executed. If, for any reason whatsoever,
including but not limited to, acts, omissions, negligence or the wilful default
of the Landlord, its agents, including Agent, employees, contractors or
representatives, the lease shall not be entered into between the Landlord and
any Prospective Tenant on or before the expiration of this Agreement, then
except as provided in Paragraphs 12 and 16 below, no commission, brokerage or
other fee of any sort shall be deemed to be due or earned by Broker or any other
Broker, nor shall such commission, brokerage or other fee be paid by Agent. It
is expressly agreed that Agent on behalf of Landlord shall have the unqualified
right, in its sole and absolute discretion, to refuse to enter into any lease
for any reason whatsoever without incurring any obligation to Broker or any
other Broker for the payment of commission or otherwise.
11. No Commission on Sales of Building Complex. No commissions shall be
paid to Broker by Agent or by Agent on behalf of Landlord in the event of the
sale of the Building.
12. Pending Transactions. No later than fifteen (15) days prior to the
scheduled expiration of this Agreement, Broker will submit to Agent a listing
stating the names of Prospective Tenants with whom Broker is then engaged in
meaningful negotiations for space within the Building and specifying the areas
within the Building with respect to which the negotiations relate. If this
Agreement is not extended by mutual agreement of the parties and if a lease is
thereafter entered into with any Prospective Tenant on that list (as it may be
supplemented as of the actual expiration of this Agreement) for the space
indicated or for any space substituted, entirety or in part, for it during the
course of negotiations, Broker shall be entitled to a commission in connection
with that lease as contemplated in this Agreement, provided the lease is signed
by all parties within ninety (90) days following the expiration of this
Agreement or, if a lease is not signed by all parties within 90 days, Broker
shall be entitled to the commission if substantive negotiations are ongoing with
the Prospective Tenant at the end of such 90 day period and Agent extends this
period in writing and such extension results in an executed lease.
13. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their permitted respective successors in
interest. Notwithstanding the foregoing, Broker shall not assign this Agreement
or any interest hereunder except to an entity formed for purposes of conducting
Broker's business. Broker acknowledges that Landlord is not a party to this
agreement and is not obligated to Broker for the payment of commissions
hereunder and agrees to look only to the assets of Agent, including but not
limited to, any commissions received by Agent from Landlord, for payment of the
commissions due or which may become due hereunder. No agreement hereafter made
shall be effective to change, modify or discharge this Agreement or constitute a
waiver of any of the provisions hereof, in whole or in part, unless it is in
writing and is signed by the party against whom enforcement of the change,
modification, discharge or waiver is sought.
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14. Cost of Suit, Attorney's Fees. If Landlord, Agent or Broker shall bring
any action against either one or both of the other parties hereto arising out of
or under this Agreement, the prevailing party shall be entitled to recover its
costs of suit including, without limitation, attorney's fees in such suit.
15. Independent Contractor. Neither this Agreement nor the relationship
between Agent and Broker shall constitute or create a partnership or joint
venture. Broker is not an employee of Agent and cannot bind Agent by its
actions. Broker is, and shall remain, an independent contractor.
16. Termination. This Agreement cannot be cancelled for the first ninety
(90) days of its term except for cause. Thereafter, this Agreement may be
terminated by either party given thirty (30) days' written notice thereof to the
other, as specified in Paragraph 18 hereof. In the event that this Agreement is
terminated by reason of Agent or Broker electing to give notice of termination,
then, within thirty (30) days of said termination, Broker will submit to Agent a
comparable listing as provided for in Paragraph 12, and the Prospective Tenants
designated therein shall be treated as pending transactions pursuant to
Paragraph 12 hereof, and Broker shall be entitled to receive commissions from
Agent with respect to said Prospective Tenants as provided herein so long as all
provisions are met.
17. Broker's Rights and Obligations on Expiration or Termination. After the
expiration or earlier termination of this Agreement, and in connection with any
canvassing or other business done by Broker with any then existing Tenant(s) of
the Building, including but not limited to, such canvassing or business which
may or does result in any such existing Tenant(s) relocating to another
Building, Broker agrees to comply with all applicable legal and professional
requirements arising out of its past relationship with Agent under this
Agreement and to otherwise act responsibly and professionally in any such
dealings with existing Tenants.
18. Notice. Notice and deliveries to Landlord, Agent and Broker shall be
addressed as follows:
To Landlord: High Cash Partners, L.P.
c/o Pembroke Supervisory Management LLC
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx X. Xxxxx
To Agent: Pembroke Supervisory Management LLC
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx X. Xxxxx
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To Broker: Colliers International
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxx 00000
Attention: Xxxxxx Xxxxx
19. Broker's Rights and Duties Concerning Existing Tenants on Expiration or
Termination. Provided this Agreement remains in effect for at least one (1)
year, at such time as the Agreement thereafter expires or is otherwise
terminated, broker agrees that it will not actively solicit then Existing
Tenants of the Building for possible relocation to another building for a period
of one year following the expiration or other termination of the Agreement;
provided, however, that this one year restriction on Broker shall not apply to
(i) any situation where an Existing Tenant approaches Building, or (ii) any
Existing Tenants with whom Broker (including any offices of Broker or its
affiliates throughout the nation) has an existing relationship concerning
representation of such existing Tenants.
20. Hazards. Agent agrees to provide Broker with any information Agent may
have regarding Hazards in the Property. Hazards shall include, but are not
limited to, asbestos, PCB transformers, other toxic or hazardous substances,
underground storage tanks, and health and safety hazards. Broker shall notify
Agent if Broker becomes aware of any Hazards in, on or about the Property. Agent
understands that Broker is not a licensed or qualified expert on Hazards.
Therefore, Broker shall not be responsible for discovering Hazards in, on or
about the Property, causing the Property to comply with laws regarding Hazards,
or supervise technical work on Hazards. Agent understands that the laws
regarding the disclosure or Hazards to tenants, buyers and other persons may be
ambiguous and subject to conflicting interpretations. Therefore, if Hazards are
discovered in, on or about the Property and Broker in good faith disagrees with
Agent's instructions regarding such disclosures, then broker may terminate this
Agreement upon sixty (60) days written notice to Agent.
All notices required or desired to be given pursuant to this Agreement
shall be personally delivered or deposited in the United States mail, certified
mail, return receipt requested, with postage prepaid, and shall be deemed to be
given on the date delivered or forty-eight (48) hours after deposit in the
United States mail, whichever is earlier.
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IN WITNESS WHEREOF, the Parties to this Agreement acknowledge their
acceptance of its terms and conditions by signing in the space provided below.
PEMBROKE SUPERVISORY MANAGEMENT LLC
By: Pembroke Companies, Inc., member
Dated: By:
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Title: President
COLLIERS INTERNATIONAL
Dated: September 9, 1999 By: /s/
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Title: Vice President
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EXHIBIT "A"
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COMPETITIVE PROPERTIES
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1) Smithridge Center
000 Xxxxxxxxxx Xxxxx
Xxxx, Xxxxxx
2) Xxx Xxxx Xxxx
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxx, Xxxxxx
3) Southwest Pavilion
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxx, Xxxxxx
EXHIBIT "B"
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STANDARD FORM LEASE
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TRANSMITTED UNDER SEPARATE COVER
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EXHIBIT "C"
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COMMISSION SCHEDULE
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[PLEASE REVIEW AND CONFIRM]
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1. Rate of Commission. Commissions earned hereunder shall be computed only upon
the Base Rent (as defined in Agent's standard form lease, Exhibit "B") with
respect to which the Prospective Tenant is unconditionally obligated as of the
execution of the lease (irrespective of any commencement date which may be set
forth in the lease), calculated as follows:
A. For Available Space and For Existing Tenants as to Expansion Space:
Office Lease: (i) 6% of the rent payable during the first five (5)
years of the term; plus (b) 3% of the rent payable during the sixth (6th) year
through the tenth (10th) year of the term; plus (c) one and one-half (1.5%) of
the rent payable during the eleventh (11th) through twentieth (20th) years of
the term;
Retail Lease: (iii) 6% of the rent payable during the first five (5)
years of the term; plus (b) 3% of the rent payable during the sixth (6th) year
through the tenth (10) year of the term; plus (c) one and one-half (1.5%) of the
rent payable during the eleventh (11th) through twentieth (20th) years of the
term.
B. For Existing Tenants as to Lease Renewals Not Pursuant to an Option:
Office Lease: (i) 3% of the rent payable during the first ten (10)
years of the term.
Retail Space: (ii) 3% of the rent payable during the first ten (10)
years of the term.
The commissions for both office and Retail shall be paid one-half upon
full lease execution, and one-half upon either occupancy by tenant or the
commencement of rental payment by tenant, whichever is earlier.
2. Exclusions. In computing the rent upon which the leasing commission is based,
the following shall be excluded:
(a) Increases in rent pursuant to any initially indeterminate rent
escalation provision in the lease whereby the Prospective Tenant is obligated to
pay increased rent, whether consisting of a share of the Landlord's increases in
taxes, costs or expenses, increases based upon the Consumer Price Index, or
otherwise;
(b) Rent upon any portion of the premises, possession of which is
retained by Landlord, as subtenant of the Prospective Tenant or otherwise;
(c) Any rent based upon a percentage of income, gross receipts or other
such data;
(d) Security or other deposits;
(e) Any other sums paid or to be paid by the Prospective Tenant
pursuant to the lease and deemed to be "additional rent" thereunder, as
contemplated in Agent's standard form of lease, Exhibit "B."
3. Cancellation Clauses. Where the Tenant, or the Landlord and the Tenant, have
the right to cancel the lease at a time subsequent to the commencement of the
term but prior to the expiration date set forth in the lease, Broker shall
initially be paid a commission based on the aggregate rental for the
uncancellable portion of the term. Broker shall be paid the balance of the
commission based on the aggregate rental for the remaining portion of the lease
term so long as the cancellation option is not exercised. If the cancellation is
by mutual agreement not pursuant to a provision contained in the lease, or if
the right of cancellation is contingent on the Landlord's acts or failure to act
or otherwise within the Landlord's control, Broker shall be paid a commission
for the entire lease term. A lease shall not be deemed cancelled within the
meaning of this paragraph unless the Tenant vacates the premises. If the Tenant
remains under a new arrangement, then Broker shall be entitled to a renewal
commission for a period greater than the term of the original letting provided
Broker participates in the new negotiations.
EXHIBIT "D"
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PENDING LEASE NEGOTIATIONS
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NOT APPLICABLE
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