Exhibit 10(b)
EXCLUSIVE BROKERAGE AGREEMENT
-----------------------------
This Agreement is made and entered into on this 20th day of August, 1995 by and
between Street Retail, Inc., a Maryland corporation ("Client"), and Westport
Advisors Corporation and Xxxx Xxxx Xxxxxxx (collectively, "Broker").
In consideration of the mutual covenants set forth in this Agreement, the
parties agree as follows:
1. This Agreement replaces the Exclusive Brokerage Agreement by and between
Client and Broker dated February 6, 1995 ("Prior Agreement") in its entirety.
As of August 21, 1995, the Prior Agreement is terminated and its terms and
provisions, including Section 5, but excluding Section 6, thereof, are null and
void.
2. Client hereby appoints Broker as its exclusive real estate broker for the
purchase of urban retail buildings (i.e. not traditional "strip" shopping
centers or shopping malls) located in Connecticut and Westchester County, New
York (the "Metro Area"). As its exclusive real estate broker for the purchase
of urban retail buildings in the Metro Area, Broker shall not identify, locate,
or assist with the purchase or sale of any urban retail buildings with any other
person, client or entity other than Client. Broker shall perform the duties of
a real estate broker; specifically, Broker shall conduct searches for properties
which fit the criteria established by Client and assist Client with all aspects
of the due diligence process in order to enable Client to evaluate the
desirability and feasibility of acquiring such properties or any interest
therein; such assistance shall include collecting and providing Client with
market information such as demographics, information on competing properties,
comparable rentals and sales and assistance in the appraisal and underwriting of
the properties.
3. Broker represents and warrants that:
a) Broker will act in accordance with the highest professional standards
of the industry and in compliance with all applicable laws,
regulations, codes, ordinances and orders.
b) There are no obligations, commitments, or impediments of any kind that
will limit or prevent the Broker's performance of its services and
obligations pursuant to this Agreement.
c) The Broker is duly licensed as a real estate broker in the States of
Connecticut and New York.
d) Broker will perform its services in a professional manner and in the
most expeditious and economical manner consistent with the interest of
Client.
e) Broker is an independent contractor and not an employee of Client.
f) Broker solely represents Client in any transaction pursuant to this
Agreement and must disclose Broker's sole representation of Client to
all third parties contacted in connection with this Agreement.
g) Broker shall NOT disclose to any prospective seller or anyone else
information obtained within the confidentiality and trust of the
fiduciary relationship with Client, nor disclose to the prospective
seller or anyone else information similarly obtained from Client
without the consent of Client.
h) Broker shall NOT receive any fees, commissions or other remuneration
other than the Commission (as hereinafter defined) from any seller,
broker or any other source in connection with any property purchased
by Client pursuant to this Agreement
4. Broker's authority is limited to performing the services in accordance with
the terms of this Agreement. Broker does not have any authority to enter into
or execute any agreement for or on behalf of Client. No written proposals,
offers or other information concerning Client shall be distributed without
Client's prior written consent, which may be withheld in Client's sole and
absolute discretion. Client shall have the right to specify Broker's degree of
involvement, if
Exclusive Brokerage Agreement
Page 2
any, with respect to any negotiation of any contract of sale ("Contract of
Sale"). Broker acknowledges that entering into a Contract of Sale involves
negotiation of complex provisions and issues, including business, tax and
operational issues and liabilities relating to a property, and that Client,
therefore, expressly reserves the right to reject any and all proposals for a
Contract of Sale and to approve any and all terms and conditions of any proposed
Contract of Sale as Client sees fit, in Client's sole and absolute discretion.
5. The term of this Agreement ("Term") shall commence on August 21, 1995 and
end at midnight on August 21, 1996, unless sooner terminated in accordance with
the provisions of this Agreement.
6. Client shall pay Broker a commission (the "Commission") equal to .75%
(three-quarters of one-percent) of the first twenty million dollars
($20,000,000) of the aggregate gross sales price of the properties acquired
subject to this Agreement (i.e. each urban retail building, or buildings located
in the Metro Area) (hereinafter, the "Properties") and 1% (one percent) of the
aggregate gross sales price of the Properties acquired subject to this Agreement
thereafter. Notwithstanding the foregoing, in no event shall Broker receive more
than two hundred twenty-five thousand dollars ($225,000.00) total commission in
connection with any single real estate transaction, regardless of the number of
individual properties contained in any such transaction. Notwithstanding
anything to the contrary contained in this Agreement, the following shall be
conditions precedent to Client's obligation to pay the Commission:
a) The execution and delivery by Client and seller of a Contract of Sale
for one or more Properties acceptable in form and substance to Client,
in Client's sole and absolute discretion; and
b) The actual closing of the sale, including Client's payment of all
monies due at closing, and transfer of title, or other evidence of
ownership, to Client.
Failure of either of these conditions shall preclude any claim for a Commission
by Broker. In no event shall Broker ever receive any fees, commissions, or
other remuneration from any seller, broker or other person or entity in
connection with properties purchased by Client pursuant to this Agreement.
With respect to the properties listed in Addendum A, in the event that (i) the
conditions precedent to Client's obligation to pay Broker a Commission, as set
forth above, are met prior to December 31, 1995, (ii) the individual/entities
listed on Addendum A ("Addendum A Broker") execute a brokerage agreement with
Client in a form satisfactory to Client, in Client's sole and absolute
discretion, prior to the execution of a purchase contract relating to the
subject property, (iii) the Addendum A Broker is duly licensed as a real estate
broker in the State of Connecticut, and (iv) Broker is not receiving any portion
of the fees being paid to any Addendum A Broker, Client shall pay brokerage
fees not to exceed the amounts referenced in Addendum A ("Addendum A Fees") in
addition to the Commission to be paid to Broker in accordance with this
Agreement, but, in no event, shall Client ever pay more than 1.5% total
commissions on the aggregate gross sale price for each such transaction. In no
event, however, will Client be responsible for the payment of any other fees or
expenses in connection with the purchase of any of the properties listed on
Addendum A.
With respect to the properties included on Addendum A after December 31, 1995
and any other properties purchased pursuant to this Agreement, in the event that
there is a real estate broker cooperating with Broker in connection with this
Agreement ("Cooperating Broker"), Client may, in its sole discretion, agree to
pay up to 0.5% of the aggregate gross sales price ("Cooperation Fee") to the
cooperating real estate broker provided that (i) the conditions precedent to
Client's obligation to pay Broker, as set forth above, have been met, (ii) the
Cooperating Broker executes a brokerage agreement in a form satisfactory to
Client, in its sole and absolute discretion, prior to the execution by Client of
a contract to purchase the property in connection with which the Cooperation Fee
may be paid, (iii) the Cooperating Broker is duly licensed as a real estate
broker in the jurisdiction in which the property is located, (iv) the
Cooperating Broker is not receiving any other fees, commissions or other
remuneration in connection with the transaction for which Cooperating Broker
otherwise could be eligible to receive a Cooperation Fee, and (iv) Broker is not
receiving any portion of the Cooperation Fee. In no event, however, shall
Client pay more than 1% total commissions with respect to
Exclusive Brokerage Agreement
Page 3
properties where Broker is earning a .75% commission or 1.25% total commissions
with respect to properties where Broker is earning a 1% commission as described
in Section 4, above.
Except following the occurrence of an Event of Default as described in Section
10, it is further understood that the Commission shall be paid to Broker if, (i)
within One Hundred Eighty (180) days after the expiration or termination of the
Term, Client enters into a Contract of Sale for one or more Properties presented
by Broker during the Term and named in a written list delivered to Client by
Broker within fifteen (15) days following the expiration of the Term or the
termination of this Agreement, (ii) such purchase is ultimately consummated, and
(iii) the two conditions precedent to Client's obligation to pay the Commission,
as set forth above, have been met. Broker's Commission shall be the sole
compensation paid to Broker and Broker shall not be entitled to reimbursement
for any expenses or any other sums Broker incurs related to or involving the
performance of the services. The Commission shall be paid to Broker at closing
and Client hereby authorizes the attorney or title company conducting the
closing to disburse the Commission to Broker at such closing. The Commission
shall be payable if the transfer or sale is structured as a cash sale, like-kind
exchange, partial sale, joint venture, newly formed partnership or transfer of
stock.
7. In no event shall Client be responsible to pay any persons or entities,
other than Broker, any commissions or other remunerations of any kind in
connection with this Agreement or by virtue of their association with Broker
except that, pursuant to Section 6, above, Client may, in its sole and absolute
discretion, pay Cooperation Fees to Cooperating Brokers and Addendum A Fees to
Addendum A Brokers. Further, Client shall not be obligated to see to the
application of the Commission, if any, due under this Agreement or the payment
of any other remuneration for the benefit of any persons or entities other than
Broker, and, in its sole and absolute discretion, Cooperating Brokers and
Addendum A Brokers, and no other persons or entity shall be a third party
beneficiary of this Agreement. Broker shall be solely responsible for the
direct payment of any commissions or other remuneration of any kind, except
payment of Cooperation Fees and Addendum A fees, if any, due to other persons or
entities claiming entitlement to a share of the Commission or any other
remuneration under this Agreement or by virtue of their association with Broker.
Broker hereby agrees to indemnify and hold Client harmless from and against any
and all claims, demands, obligations, liabilities, losses and damages
(including, without limitation, attorney's fees of counsel selected by Client)
arising directly or indirectly out of or in connection with any claim for
commissions or other remuneration of any kind for any person or entity claiming
by, through or under Broker or relating in any way to this Agreement, or
Broker's actions or failure to act pursuant to this Agreement; it being
understood and agreed that Client's liability hereunder shall be limited to the
payment to Broker of the Commission, if any, owed under the Agreement. In the
event any claims, demands, obligations, liabilities, losses and/or damages arise
in connection with any claim for commissions, fees or other remuneration, Client
may, in its sole and absolute discretion, withhold Commissions otherwise payable
to Broker pending final resolution and may offset against such Commissions any
such claims, demands obligations, liabilities, losses and or damages. This
provision shall survive any termination of this Agreement.
8. Broker shall obtain, pay for and keep in force at all times during the
performance of work pursuant to this Agreement, the following insurance
coverages placed with insurance companies having an A.M. Best rating of A VI or
better:
Comprehensive General Liability Insurance, with limit of not less than one
million dollars ($1,000,000) per occurrence, or Commercial General Liability
--
Insurance with limits of not less than one million dollars ($1,000,000) per
occurrence and two million dollars ($2,000,000) aggregate. Client shall be
added as an additional insured. The policy shall provide such additional
insured with a thirty (30) day notice of cancellation, non-renewal or material
change. Any certificates of insurance furnished in accordance with this
Agreement shall specify who has been added as an additional insured and shall
state that the policy has been amended to provide the thirty (30) day advance
notice.
Professional Liability Insurance with a limit of not less than one million
dollars ($1,000,000).
Contractor may meet the limits of liability indicated by means of the use of an
umbrella liability policy. Any general liability policy must be written on an
occurrence basis. Owner shall be
Exclusive Brokerage Agreement
Page 4
furnished with certificates evidencing that all such insurance specified herein
is in force prior to commencement of services provided pursuant to this
Agreement.
9. This Agreement may be terminated by either party upon thirty (30) days'
written notice. In the event of termination by either party, Broker shall be
entitled to receive only that Commission which it has earned pursuant to and in
accordance with Section 6 of this Agreement and Client shall have no further
obligations or liabilities hereunder.
10. Broker's failure or refusal to perform or observe any obligation, covenant,
or condition of this Agreement shall constitute an Event of Default. Should an
Event of Default occur, Client may, at its option, terminate this Agreement
without affecting any other remedy which it may have at law or in equity. Such
termination shall be effective immediately upon Broker's receipt of written
notice from Client. In such event, Broker shall be entitled to receive only
that Commission which it has already earned pursuant to and in accordance with
Section 6 of this Agreement, less any and all damages, losses, claims, costs and
expenses incurred or suffered by Client as a result of Broker's failure or
refusal to perform and Client shall have no further obligations or liabilities
hereunder. Broker will not be entitled to receive any Commissions on properties
that are purchased by Client, unless the purchase agreement is fully executed
before the date of occurrence of an Event of Default and the conditions
precedent to the Client's obligation to pay a Commission set forth in Section 6
have been met.
11. Client, its directors, employees, officers, agents and shareholders
shall not be personally liable under this Agreement and Broker hereby agrees to
look solely to Client's property, real, personal or otherwise, tangible or
intangible, for payment of any claim hereunder.
A similar limitation on liability shall be inserted in each document executed by
Street Retail, Inc. (if any) pursuant to this Agreement.
12. Whenever any demand, request, approval consent or notice ("Notice") shall
or may be given by one party to the other, Notice shall be addressed to the
parties at their respective addresses as set forth below and delivered by (i)
hand, (ii) facsimile, (iii) a nationally recognized overnight express courier,
or (iv) registered or certified mail return receipt requested. The date of
actual receipt shall be deemed the date of service of Notice. In the event an
addressee refuses to accept delivery, however, then Notice shall be deemed to
have been served on either (i) the date hand delivery is refused, (ii) the next
business day in the case of delivery by overnight courier, or (iii) three (3)
business days after mailing the notice in the case of registered or certified
mail. Either party may, at any time, change its Notice address by giving the
other party Notice, in accordance with the above, stating the change and setting
forth the new address.
Client: Xxx X. Xxxxxx
Vice President
Street Retail, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
with a copy to:
Street Retail, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attn: Secretary
Broker: Westport Advisors Corporation
00 Xxxxxx Xxxx Xxxxx, Xxxxxxxx X
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxx Xxxx Xxxxxxx, President
13. This Agreement contains the entire agreement between Client and Broker,
supersedes any prior agreements or understandings, and no oral statements or
prior written matter not specifically incorporated in this Agreement
Exclusive Brokerage Agreement
Page 5
unless set forth in a document executed by these parties or a duly authorized
agent, officer, or representative hereof
14. Neither Client nor Broker shall file or record any instrument or document
relative to this Agreement in any public records except as may be required by
the federal securities laws.
15. Notice: The amount or rate of real estate commissions is not fixed by law.
They are set by each Broker individually and may be negotiable between the
Client and the Broker.
16. This Agreement shall be subject to Section 46a-64 of the Connecticut
General Statutes, as amended, and governed by and construed in accordance with
the laws of the State of Connecticut.
17. The heirs, transferees, successors, and assigns of the parties hereof shall
be duly bound by the provisions hereof, provided Broker may not assign or
otherwise transfer its right or obligation hereunder.
18. The terms of the Agreement shall be governed by and construed in accordance
with the laws of the State of Maryland.
19. This Agreement may be executed in counterparts, each of which shall be
deemed to be an original and shall together constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above stated.
CLIENT:
STREET RETAIL, INC.
By: /s/ Xxx X. Xxxxxx
________________________________
Xxx X. Xxxxxx
Vice President
BROKER:
WESTPORT ADVISORS CORPORATION
By: /s/ Xxxx Xxxx Xxxxxxx
_______________________________
Xxxx Xxxx Xxxxxxx
President
XXXX XXXX XXXXXXX
/s/ Xxxx Xxxx Xxxxxxx
__________________________________
