EXHIBIT 10.28
EXCLUSIVE LISTING AGREEMENT
THIS EXCLUSIVE LISTING AGREEMENT ("Agreement") is made as of
the 10th day of December, 2001, by and between EBS BUILDING, L.L.C., a Delaware
limited liability company, c/o PricewaterhouseCoopers LLP, 000 Xxxxxx Xxxxxx,
Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000 ("Owner") and COLLIERS XXXXXX XXXXXX
XXXXXX, INC. , a Missouri corporation, 0000 Xxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxx 00000 ("Broker").
WITNESSETH:
WHEREAS, Owner owns the building presently known as One
Financial Plaza, with an address of 000 Xxxxx Xxxxxxxx, in St. Louis, Missouri,
appurtenant related parking facilities (partly owned in fee, partly by
leasehold) and appurtenant common areas (hereinafter, together with the real
estate on which the same are situated, collectively referred to as the
"Property"); and
WHEREAS, Owner desires to engage Broker as Owner's agent to
sell the Property and Broker desires to accept such engagement, upon and subject
to the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the mutual
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Owner and Broker hereby agree as follows:
1. EXCLUSIVE RIGHT TO LIST
Owner hereby grants to Broker the exclusive right to sell the Property
for the term of this Agreement. Notwithstanding anything to the
contrary herein or elsewhere, all terms and conditions of an agreement
with any prospective purchaser shall be subject to Owner's sole and
absolute discretion. Owner has the absolute right in all events to
approve or to disapprove any and all proposals regarding pricing,
marketing and terms of sale of the Property. Broker shall have no
authority to extend any offer or make any agreement on behalf of or
binding on Owner, and Broker shall have no authority to accept security
or other deposits in connection with any offer to purchase the
Property; accordingly, an agreement to sell the Property shall become
effective only when (a) signed by an authorized signatory on behalf of
Owner and the prospective purchaser and (b) delivered by Owner to such
prospective purchaser.
2. TERM
The term of this Agreement shall end, and this Agreement shall
terminate and be of no further force and effect, on August 31, 2002;
provided, however, that (a) Owner and Broker shall each have the right
to terminate this Agreement and end the term without cause at any time
by providing thirty (30) day's prior written notice to the other party,
(b) Owner shall have the further right to terminate this Agreement and
end the term without cause immediately upon the termination of Owner as
a limited liability company or termination of
the operating agreement dated as of September 26, 1997, under which
Owner is constituted, (c) Owner shall have the further right to
terminate this Agreement and end the term without cause immediately
upon the sale, merger or consolidation of Owner and (d) Owner and
Broker shall each have the right to terminate this Agreement and end
the term for cause immediately upon giving written notice of such cause
and such termination to the other party.
3. DUTIES OF BROKER
Broker accepts the relationship of trust and confidence established
between Broker and Owner under this Agreement. Broker agrees to take
all actions reasonably required or helpful in selling the Property as
promptly as possible, including promoting and marketing the Property
for sale, using its diligent and best efforts, skill, judgment, and
abilities to show the Property, offering the Property for sale,
procuring prospective purchasers for Property, cooperating with outside
brokers representing such prospective purchasers, obtaining financial
and reference information on prospective purchasers, promptly
submitting all offers to purchase the Property to Owner, and other
actions as may be directed by Owner from time to time. Inquiries
regarding the Property shall be referred to Broker, and related
negotiations shall be handled by or under direction of Broker, subject
to the approval and review of Owner and subject to the participation of
legal counsel selected and retained by Owner to assist as necessary in
preparation and negotiation of the sale contract and to institute and
defend any and all legal proceedings associated with the sale of the
Property; provided that no such legal proceedings or compromises or
settlements of such legal proceedings shall be undertaken or defended
without, in each instance, the prior written approval of Owner. Without
limiting the generality of the foregoing, Broker specifically agrees to
provide monthly activity reports to Owner on or before the 20th day of
each calendar month, detailing the activities undertaken by Broker in
connection with the sale of the Property, including, but not limited
to, any outstanding offers, prospects shown the Property, active
prospects, and other marketing activities. Notwithstanding anything to
the contrary herein or elsewhere, Broker shall perform its duties under
this Agreement at its own expense and shall be entitled to no
reimbursement of costs other than as expressly provided in Sections 4,
5 and 6 of this Agreement.
4. COMMISSION ON SALE
Upon the sale of the Property pursuant to a written sale contract
executed during the term of this Agreement by a purchaser procured by
Broker, Owner agrees to pay to Broker a commission in accordance with
Exhibit A attached hereto and incorporated herein by reference. The
commission shall be earned, due and payable in full at the time of the
transfer of title to the Property. If a cooperating broker has
participated in procuring a sale, Broker shall be responsible for
paying any and all commissions to the cooperating broker after Broker
is paid by Owner, and Broker shall indemnify and hold Owner harmless
from and against the claims of any cooperating broker with claims
arising from a cooperating broker relationship initiated by or through
Broker including, but not limited to, attorneys' fees and expenses in
connection with Owner's defense against such claims.
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Owner reserves the right to adjust the asking price, modify the
marketing plan or withdraw the Property from the market, without being
liable for any commission hereunder, at its discretion throughout the
term of this Agreement. Broker shall not be entitled to any commission
with respect to offers to purchase which, when submitted to Owner for
approval pursuant to this Agreement, shall, for any reason, be rejected
by Owner. Broker's commission shall be deemed earned and payable when,
and only if, title passes to a purchaser of the Property. Owner shall
not have any obligation to xxx any prospective purchaser who defaults
under the terms of a binding contract of sale for damages or specific
performance. In the event a prospective purchaser defaults and Owner
becomes entitled to such prospective purchaser's xxxxxxx deposit, then
such xxxxxxx deposit shall be forfeited to Owner as liquidated damages,
and Broker shall not be entitled to any part thereof. No commission
will be deemed earned and payable in the event the Property or any
portion thereof is (i) taken by a municipality or other authority in a
condemnation or similar proceeding or by deed in lieu thereof or (ii)
acquired by a lender under a foreclosure proceeding or other similar
process.
5. POST-TERMINATION COMMISSIONS
Within ten (10) days following the termination of this Agreement,
Broker may submit to Owner a written list of any person or entity
proposed by Broker during the term of this Agreement as a prospective
purchaser of the Property with whom Broker had substantial
negotiations, as defined below, during the term of this Agreement. The
term "substantial negotiations" shall mean that (a) Broker provided
marketing materials regarding the Property and (b) either Broker
brought the prospective purchasers to the Property, the prospective
purchaser had negotiations with Owner or Broker received a signed
letter of intent. Broker's list shall include the names and addresses
of such prospective purchasers and supporting documentation of such
negotiations. Broker shall have no claim of commission (and hereby
waives any claim of commission) with respect to any person or entity
procured or claimed to have been procured by Broker who shall purchase
the Property after the termination of this Agreement unless and except
to the extent such person or entity shall be included on such list so
submitted to Owner within ten (10) days after termination of this
Agreement. If within one hundred and eighty (180) days from the date of
termination of this Agreement, a sale is consummated between Owner any
person or entity included on such list submitted to Owner, Owner shall
pay Broker the commission in accordance with Exhibit A. The agreements
of this Section 5 shall survive the termination of this Agreement.
6. ADVERTISING AND MARKETING
Broker shall (a) advertise the Property for sale; (b) prepare a
marketing plan, brochures and collateral materials for the Property;
and (c) engage competent consultants (e. g. public relations,
advertising, etc.) on an "as needed" basis. The content and extent of
Broker's advertising and marketing activities and the services and
consultants engaged by Broker in connection with the same shall be
subject to the prior approval of Owner. Broker's identification
signage, if any, on or within the Property shall be subject to the
prior approval of Owner, and Broker shall be responsible for assuming
that any such signage conforms to
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applicable laws and code and all requirements and restrictions of the
leases of the Property and any recorded instruments encumbering the
Property. Upon termination of this Agreement (or sooner, if directed by
Owner), Broker shall remove its identification signage from the
Property and fully restore and repair all damage caused by installation
or removal; and the agreement to do so under this Section 6 shall
survive the termination of this Agreement. Broker shall be responsible
for the costs of all marketing, and advertising activities with respect
to the Property, provided, however, that Owner shall reimburse Broker
for all such out-of-pocket costs and expenses for which Broker has
obtained the prior written approval of Owner (provided that in no event
shall Owner be required to reimburse any such costs or expenses in
excess of the cumulative amount of $25,000), and excepting, however,
that Owner shall pay the cost of legal counsel selected and retained by
Owner in accordance with Section 3 of this Agreement.
7. NONDISCRIMINATION
The Property shall be offered without regard to race, color, creed,
religion, national origin, sex, handicap, or familial status.
8. REPRESENTATIONS
Owner makes no representations or warranties regarding the Property or
the condition of the Property including, but not limited to, the
presence or absence of asbestos, PCB transformers, or toxic, hazardous
or contaminated substances in, on or about the Property. Broker is not
authorized to make any representations or warranties relating to the
Property unless and except to the extent expressly approved in writing
by Owner.
9. INDEMNIFICATION
Owner shall hold harmless and indemnify Broker against any liability,
loss or expense incurred by Broker as a result of any misrepresentation
of Owner or its agents (other than Broker) or the negligence or willful
misconduct of Owner or its agents (other than Broker). Broker shall
hold harmless and indemnify Owner against any liability, loss or
expense incurred by Owner as a result of any misrepresentation of
Broker, its agents, employees, or the negligence or willful misconduct
of Broker, its agents, employees, or invitees. The agreements of this
Section 9 shall survive the termination of this Agreement
10. STANDARDS
Broker shall further the interests of Owner in accordance with Owner's
from time to time requirements, procedures and directions, in
accordance with the highest professional standards. Broker shall comply
with all national, federal, state, and municipal laws, regulations,
codes, ordinances, and orders applicable to Broker and the activities
of Broker under and in connection with this Agreement.
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11. ASSIGNMENT
Broker shall not be entitled to assign any rights or to delegate any
duties or obligations under this Agreement, and any assignment in
violation of this prohibition shall be void.
12. GOVERNING LAW
This Agreement shall be construed according to and governed by the laws
of the State of Missouri.
13. ATTORNEY'S FEES
In connection with any controversy arising out of this Agreement, the
prevailing party shall be entitled to recover, in addition to costs,
damages or other relief, its attorney's fees and costs incurred.
14. MODIFICATIONS
This Agreement may not be amended, modified or changed, nor shall any
waiver of any provisions hereof be effective, except only by an
instrument in writing and signed by the party against whom enforcement
of any waiver, amendment, change, modification or discharge is sought.
15. NOTICES
All notices or other communications required or desired to be given
hereunder shall be in writing and shall be effective for all purposes
if hand delivered to the parties at the respective addresses set forth
above (or such other addresses as the parties may hereafter designate
in writing) or sent to the respective parties at such addresses by (a)
certified or registered United States mail, postage prepaid, (b)
expedited prepaid delivery service, either commercial or United States
Postal Service, with proof of attempted delivery, or (c) by telecopier
(with answer back acknowledged and so long as the original of said
telecopy is mailed the next day). A notice shall be deemed to have been
given: in the case of hand delivery, at the time of delivery; or in the
case of mail delivery three (3) days after having been deposited in the
United States mail postage prepaid and properly addressed; or in the
case of notice sent via overnight delivery service or telecopy, upon
receipt.
16. INDEPENDENT CONTRACTOR
It is expressly understood and agreed that Broker, as an agent of
Owner, will act as an independent contractor in the performance of this
Agreement. The parties hereby agree that nothing in the Agreement shall
be intended or construed to create an employer-employee relationship, a
partnership, or a joint venture with respect to the Property or
otherwise.
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17. SUBORDINATION
This Agreement shall be subject and subordinate to any mortgage or deed
of trust now or hereafter encumbering the Property or any part thereof,
and at the option of the beneficiary of any such mortgage or deed of
trust or any transferee of title to the Property by virtue of
foreclosure of the lien of such mortgage or deed of trust (such option
to be exercised by written notice to Broker) or by transfer in lieu of
foreclosure (i) Broker shall attorn to and recognize such beneficiary
or transferee as the successor to Owner of the Property, and Broker
shall thereupon continue to perform Broker's covenants hereunder or
(ii) such beneficiary or transferee may terminate this Agreement as of
the date of notice of foreclosure or transfer. Broker hereby agrees
that the beneficiary of any such mortgage or deed of trust and the
transferee of title to the Property shall be intended third party
beneficiaries of this Agreement entitled to enforce these provisions.
18. LIENS
Broker agrees to execute and deliver to Owner, as a condition to any
payment due to Broker from Owner hereunder, waivers of lien pursuant to
any statute which may grant Broker the right to a lien on the Property
as may be requested by Owner in connection with such payment. If Broker
is to pay any cooperating broker out of funds paid to Broker by Owner,
Broker shall make no such payments without first obtaining similar
waivers of lien from such cooperating broker, and the delivery of such
waivers of lien from such cooperating broker shall, if requested by
Owner, be a further condition to payment due to Broker. Broker further
agrees that any and all rights which Broker, and anyone claiming by,
through or under Broker, may have to a lien under any statute shall be
at all times subject and subordinate to the lien of any mortgage or
deed of trust, and Broker further agrees, upon Owner's request, to
execute and deliver to the holder of any mortgage or deed of trust
against the Property or any interest therein a subordination agreement
expressly subordinating any and all such liens rights to the lien of
such mortgage or deed of trust. The agreements of this Section 18 shall
survive the termination of this Agreement.
19. EXCULPATION
Recourse for the obligations of Owner under this Agreement shall be
limited to Owner's interest in the Property. The obligations of Owner
under this Agreement shall not be personally binding on or enforceable
against Owner, nor shall any resort be had to the assets of any of the
members, managers, agents, or asset manager of Owner, as the case may
be, or any of their representatives, partners, members, beneficiaries,
stockholders, employees or agents.
20. BINDING EFFECT
This Agreement shall be binding upon, and shall inure to the benefit
of, the successors and assigns of the parties hereto, subject to the
restrictions and limitations of Sections 11 and 19 of this Agreement.
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21. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between Broker and
Owner and supercedes all prior discussions, negotiations and
agreements, whether oral or written.
IN WITNESS WHEREOF, the parties hereto have duly entered into
this Agreement as of the day and year first above written.
OWNER:
EBS BUILDING, L.L.C.
By: PricewaterhouseCoopers LLP,
its Manager
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
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Title: Partner
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BROKER:
COLLIERS XXXXXX XXXXXX XXXXXX, INC.
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
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Title: Executive Vice President
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EXHIBIT A
SCHEDULE OF COMMISSIONS
Gross Sale Price Received by Owner Commission
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A. Up to and including $38 million 1% of gross sale price
B. In excess of $38 million $380,000 plus 5% of gross sale
price in excess of $38 million
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