Exhibit 10(a)
NON-EXCLUSIVE BROKERAGE AGREEMENT
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This Agreement is made and entered into on this 20th day of August, 1995 by and
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between Federal Realty Investment Trust, an unincorporated business trust
organized under the laws of the District of Columbia ("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 non-exclusive real estate broker for
the purchase of strip shopping centers in New York, Connecticut and
Massachusetts. 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 centers, comparable rentals and
sales and assistance in the appraisal and underwriting of the properties.
Client shall have a right of first refusal, which refusal must be in writing, on
all strip shopping center properties identified or located by Broker before
Broker can identify, offer or show such properties to any other potential
purchaser. Client must respond within a three (3) week or twenty-one (21) days.
3. Broker represents and warrants that:
a) Broker will act in accordance with the highest professional standards
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 each
jurisdiction where such licensure is required;
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
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absolute discretion. Client shall have the right to specify Broker's degree of
involvement, if 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 aggregate gross sales price of the
properties acquired subject to this Agreement (hereinafter, the "Property").
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. 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. 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.
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.
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
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 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
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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 a limit of not less than
one million dollars ($1,000,000) per occurrence, or Commercial General Liability
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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 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. The name, "Federal Realty Investment Trust", refers to the Trustees, as
trustees, but not individually or personally, under a Third Amended and Restated
Declaration of Trust on file in the office of the Recorder of Deeds of the
District of Columbia, which Declaration provides that neither the shareholders
nor the Trustees, nor any officer, employee, representative or agent of Federal
Realty Investment Trust shall be personally liable for the satisfaction of
obligations of any nature whatsoever of Federal Realty Investment Trust.
Accordingly, and in addition to the other limitations on liability set forth
herein, Broker hereby agrees to look solely to Federal Realty Investment Trust's
trust property for the satisfaction of any claim arising from this Agreement and
shall not seek to impose personal liability on any shareholder, Trustee,
officer, employee, representative or agent of Federal Realty Investment Trust.
A similar limitation on liability shall be inserted in each document executed by
Federal Realty Investment Trust (if any) pursuant to this Agreement.
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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: Xxxxxx X. Xxxxxxx
Senior Vice President, Acquisitions
Federal Realty Investment Trust
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Broker: Westport Advisors Corporation
00 Xxxxxx Xxxx Xxxxx, Xxxxxxxx X
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxx Xxxx Xxxxxxx
13. This Agreement contains the entire agreement between Client and Broker, it
supersedes any prior agreements or understandings and no oral statements or
prior written matter not specifically incorporated in this Agreement shall be of
any force and effect. No variation, modification, or changes of this Agreement
shall be binding on either party to the Agreement 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.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above stated.
CLIENT:
FEDERAL REALTY INVESTMENT TRUST
By: /s/ Xxx X. Xxxxxxx
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Xxx X. Xxxxxxx
Chief Operating Officer
BROKER:
WESTPORT ADVISORS CORPORATION
By: /s/ Xxxx Xxxx Xxxxxxx
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Xxxx Xxxx Xxxxxxx
President
XXXX XXXX XXXXXXX
/s/Xxxx Xxxx Xxxxxxx
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