AGREEMENT
In consideration of the mutual agreements contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, EQK Realty Investors I, debtor in possession ("Owner"), and
Granite Partners, L.L.C. ("Agent") hereby agree as follows:
1. APPOINTMENT. Owner hereby appoints Agent as its exclusive
agent and grants Agent the exclusive right to sell the property identified as
Harrisburg East Mall, Harrisburg, Pennsylvania (the "Property"). Agent accepts
the appointment and agrees to perform the service required by this Agreement and
to use its best efforts to assist Owner in selling the Property at the maximum
price and on a timely basis.
2. TERM. The term ("Term") of this Agreement shall commence on
the date hereof and expire on August 31, 2000 ("Expiration Date") unless
terminated earlier as provided below.
3. RELATIONSHIP AND AUTHORITY. Agent is the agent of Owner.
Agent has no authority to enter into any agreement with any prospective
purchaser, real estate broker or any other person in the name of, on behalf of,
or otherwise binding upon Owner, nor may Agent subject Owner to any other
obligations or liabilities. 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. Owner reserves the right to adjust the terms and
conditions of any offer made or received, including but not limited to
adjustment of the offering price for the Property upward or downward. Owner
further reserves the right to withdraw the Property from sale at any time.
Acceptance of any offer received shall be subject to final approval of Owner at
each stage of the approval process preliminary thereto, with Owner having the
right in its unfettered discretion to disapprove the transaction at any stage of
its investment approval process, without obligation thereafter to proceed to the
next stage.
4. DUTIES AND SERVICES. Agent's duties and services are
described below. Agent shall provide the organization, staff and resources to
perform these duties and services on a first class professional basis
appropriate for the Property.
4.1 INSPECTION. Agent shall inspect the Property to determine its
physical condition, relative market appeal, quality of
location, market and area trends, and potential for value
enhancement prior to entering the market.
4.2 REVIEW AND ANALYSIS. Agent shall conduct an independent
review of the Property's financial performance, including an
analysis of historical performance, market area, competition
and project cash flows. Agent shall review all leases,
management agreements, cross easement and operating
agreements, and other documents affecting the Property
delivered to Agent by Owner.
4.3 PRICING. Agent shall propose and Owner shall establish, in
its sole discretion, the sales price and other terms and
conditions for the sale of the Property. Agent shall not
quote a sales offering price without the express written
permission of Owner.
4.4 OFFERING BROCHURE. Agent shall assemble and produce an
offering brochure which is satisfactory to Owner. Owner shall
assist in providing the information necessary for Agent to
prepare a professional offering brochure and for a
prospective purchaser to fulfill its due diligence
requirements and make its decision to purchase. The brochure
shall include property facts, photographs, high-quality
graphics, ten-year performance cash flow projections (if
requested by Owner), market competition data, descriptive
area and location information, site plan, surveys, floor
plans, and other relevant information.
Subject to timely receipt of all required information, the brochure, together
with the matters described in the three (3) preceding subparagraphs, shall be
submitted to Owner for review within twenty (20) days after the date of this
Agreement.
4.5 PURCHASER QUALIFICATION. Agent shall prepare a list of
prospective purchasers and submit it to Owner. Owner and
Agent shall work together to establish criteria for and
select a limited number of qualified prospective purchasers
who may receive offering material subject to Owner's
approval.
4.6 MARKETING. Agent shall commence direct sales efforts on a
selective basis only to the prospective purchasers approved
by Owner. Agent understands that owner may desire to conduct
an auction of the Property. Agent agrees to assist in the
auction process including preparation of auction materials
and due diligence materials, conducting of tours of the
Property by interested parties, and otherwise participating
in the auction process. Agent shall promote the sale of the
Property to as many responsible and financially qualified
potential Stalking Horses (as defined in Paragraph 4.9 below)
and auction purchasers as possible. Agent shall provide
prospective purchasers with additional information and
coordinate site visits.
4.7 COMMUNICATIONS WITH OWNER. Agent shall promptly inform Owner
of all offers and inquiries with respect to the Property.
Owner will refer all inquiries to Agent. Agent will prepare
and submit to Owner a weekly status report on the marketing
of the Property which will include an updated list of all
prospective purchasers with whom agent has made written or
verbal inquiry. The report shall provide a status update on
each prospective purchaser and shall rank the prospective
purchasers with respect to the probability that they will
enter into a contract of sale as a Stalking Horse (as defined
in paragraph 4.9 below) or attend the auction as financially
qualified bidders.
4.8 PRE-OFFERING DUE DILIGENCE. Agent shall perform reasonable
due diligence as part of its preparations of the offering
brochure in order to minimize post-due diligence repricing by
any prospective purchasers. As part of this effort, Agent
shall read and summarize all tenant leases and lease
amendments and accurately reflect the lease terms in the
offering brochure.
4.9 NEGOTIATIONS. Agent shall screen and pre-qualify all
prospective purchasers and will facilitate the conduct of due
diligence between such prospective purchasers and Owner,
including the negotiation and execution by the initial
contracting party (the "Stalking Horse") of an Owner-approved
form of contract of sale, all under Owner's guidance and
subject to Owner's approval. It is anticipated that the
purchase price included in the Stalking Horse's contract
shall be the minimally acceptable price for the Property, and
shall be the floor price at an auction of the Property to be
conducted under the jurisdiction of the Court (as defined in
Section 12.10 below) to follow. Agent shall supervise all
Property inspections and other due diligence performed by
prospective purchasers. Owner reserves the unilateral right
to deny any inspections.
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4.10 CLOSING. Agent shall participate, if deemed necessary and
appropriate by Owner, in the preparation for closing of the
sale so as to ensure a timely closing. Agent's
responsibilities in this regard shall include (i) cooperation
with Owner's counsel in the preparation and execution of a
contract of sale, closing checklist and closing
documentation, and (ii) coordination with the property
manager for the Property to secure all documents and
information required for closing.
4.11 RECOMMENDATION. During the last five (5) days of the Term, if
there exists no final written contract of sale for the
Property, Agent shall submit to Owner a final written report
of the status of the marketing of the Property, including a
final list of prospective purchasers and Agent's
recommendations as to Owner's most advantageous course of
action with respect to the sale of the Property. The final
list of prospective purchasers shall identify only those with
whom Agent has had substantial negotiations (as defined
herein) during the Term (and, if requested by Owner, Agent
shall provide supporting documentation of such negotiations).
The term "substantial negotiations" shall mean that (1) the
Agent provided the offering materials, and (2) either Agent
brought the prospective purchasers to the Property or Agent
received one or more subsequent letters expressing further
interest or requesting additional information, or prospective
purchaser commenced negotiations with Owner, or Agent
received a signed letter of intent (even if Owner did not
sign the letter of intent). Owner shall have no obligation to
accept, reject or otherwise respond to or act on Agent's
recommendation.
4.12 STAFFING. Agent hereby commits to Owner the services of
Richard H. Rudd, Robert E. Williamson and Alan Tantleff,
("Key Staff") and their associates or substitutes reasonably
acceptable to Owner. The Key Staff shall assume primary
responsibility for the initiation of all discussions with
prospective purchasers on the part of Agent, and, with
Owner's guidance and subject to Owner's approval, will handle
all negotiations on the part of Agent with prospective
purchasers.
5. FEE. Agent's sole and exclusive compensation for its services
hereunder (the "Fee") will be 0.675% of the gross purchase price of the Property
received by Owner at the closing of the sale of the Property, and in accordance
with the following terms:
The Fee shall be earned and payable if and only if the closing occurs (i) during
the Term or (ii) pursuant to a Purchase and Sale Agreement which was fully
executed and delivered by both Purchaser and Owner within ninety (90) days after
the Term with a purchaser validly on the list provided to Owner pursuant to
subparagraph 4.11 above. If the sale fails to close for any reason whatsoever,
including Owner's withdrawal of the Property from the market or disapproval of
the Court (as defined in Paragraph 12.10), Owner shall not be liable to Agent
for the Fee or any compensation or damages in lieu thereof other than for
expense reimbursement as set forth in Section 6 herein. After the end of the
Term, Owner shall have no obligation or liability to Agent for the Fee, any
commission or other compensation of any kind with respect to the negotiation for
or sale of the Property to any person, whether directly or through another
broker, except in the event of a sale described in clause (ii) of this Paragraph
5 above. After the end of the period described in said clause (ii), Owner shall
have no obligation or liability to Agent for the Fee, any commission, or other
compensation of any kind with respect to the negotiation for or sale of the
Property to any such person identified by Agent as a prospective purchaser under
this Agreement. For purposes of computation of the Fee, the gross purchase price
of the Property shall include the principal amount of any loan assumed or taken
subject to, the cash equivalent of all purchase money financing extended by
Owner in connection with the sale, determined by discounting based upon a market
rate for comparable mortgages, and the purchase price of all fixtures and
personal property owned by Owner and associated with the
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Property if sold for separate consideration. For the purposes of this Agreement,
if substantially all of the ownership interests in Owner are sold to a single
purchaser in a single transaction at a time when both (i) Owner retains
ownership of the Property and (ii) the Property is not subject to an agreement
of sale, then (y) the sale of such ownership interests shall be deemed to be a
sale of the Property and (z) to the extent a Fee is due to Agent with respect to
such sale under the terms of this Agreement, the Fee due to Agent with respect
to such sale shall be computed solely with respect to the portion of the
consideration fairly attributable to Harrisburg East Mall, Harrisburg,
Pennsylvania. Notwithstanding anything contained herein to the contrary, no Fee
shall be deemed earned by Agent or payable to Agent if title to the Property or
the ownership interests in Owner are acquired by The Prudential Insurance
Company of America ("Prudential"), PNC Bank, National Association ("PNC"), any
future holders of either the mortgage held by Prudential on the Property or the
mortgage held by PNC on the Property, or any of the foregoing's nominees,
affiliates, successors or assigns, whether by purchase, foreclosure, deed in
lieu of foreclosure or otherwise.
6. EXPENSES. Agent will prepare, for Owner's approval, a
proposed budget of anticipated out-of-pocket expenses to be incurred in
connection with the marketing of the Property pursuant to this Agreement (the
"Budget"). Such Budget shall include Agent's representatives' travel and other
direct out-of-pocket expenses. Within thirty (30) days of presentation of
invoices to Owner, Owner shall reimburse Agent monthly for its direct
out-of-pocket expenses included in the Budget for the preparation of the
offering brochures required under subparagraph 4.4 above and in the marketing of
the Property hereunder. Except as expressly provided in this paragraph, all
other expenses incurred by Agent in the performance of this service hereunder
shall be borne by Agent, not Owner, and Owner shall have no obligation to
reimburse Agent for any costs or expenses whatsoever incurred in the performance
of this Agreement.
7. INDEMNIFICATION. Owner shall Indemnify and Hold Agent
Harmless with respect to Agent's activities pursuant to this Agreement, except
for Agent's actions outside the scope of its authority, its negligence, willful
malfeasance or bad faith. Agent shall Indemnify and Hold Owner Harmless with
respect to Agent's actions outside the scope of its authority, its negligence
willful malfeasance and bad faith. This provision shall not relieve either party
from liability to the other for breach of this Agreement. For the purpose of
this paragraph, the term "Indemnify and Hold Harmless" shall mean to hold
harmless from, indemnify and defend against, and pay promptly on demand
therefore, any and all claims demands, actions, causes of actions, losses,
expenses (including, without limitation, attorneys fees at both trial and
appellate levels), costs (including, without limitation, court costs at both
trial and appellate levels), damages and all liabilities arising out of or
incurred in connection with activities pursuant to this Agreement. This shall be
an indemnity against alleged liability and not merely for damages.
8. LICENSING. Agent warrants and represents to Owner that Agent
has all necessary real estate brokerage and any other licenses in all necessary
states and agrees to maintain such licenses in full force and effect throughout
the Term. Agent covenants that it shall comply with all applicable broker and
other laws in dealing with prospective purchasers and with cooperating brokers.
9. TERMINATION. Either party may terminate this Agreement at any
time by written notice to the other, notwithstanding any other provision in this
Agreement to the contrary. If Owner terminates this agreement for cause or if
Agent terminates it without cause, then Agent shall not be entitled to the Fee,
any other commission or compensation or any reimbursement for expenses pursuant
to paragraph 6 above under any circumstances whatsoever. The term "cause" shall
mean the other party's material breach of terms of this Agreement (which breach
is not cured within ten (10) days of notice thereof), actions outside the scope
of its authority, negligence, willful malfeasance or bad faith. The provisions
of paragraphs 2, 5, 6, 7, 8, 9 and 11 shall survive the termination of this
Agreement, subject to the foregoing provisions of this paragraph.
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10. NOTICE. Each Notice ("Notice") provided for under this
Agreement shall be in writing and sent by depositing it with the United States
Postal Service or any official successor thereto, certified or registered mail,
return receipt requested, with adequate postage prepaid, with a nationally
recognized overnight courier service which obtains receipts, addressed to the
appropriate party (and marked to a particular individual's attention if so
indicated), or by telecopy (with a copy sent the same day by a nationally
recognized overnight carrier service which obtains receipts for next day
delivery) as hereinafter provided. Each Notice shall be effective upon being so
deposited, but the time period in which a response to any Notice must be given
or any action taken with respect thereto shall commence to run from the date of
actual receipt of the Notice by the addressee thereof, which receipt may be
conclusively evidenced by the return receipt or, if sent by telecopy, as
conclusively evidenced by the telecopy confirmation. Rejection or other refusal
by the addressee to accept (except in the case of a telecopy notice) or the
inability to deliver because of a changed address or telecopy number of which no
Notice was given shall be deemed to be the receipt of the Notice sent. Any party
shall have the right from time to time to change the address and/or telecopy
number(s) to which copies of Notices to it shall be sent by giving to the other
parties Notice thereof. Notices may be sent on behalf of a party by its counsel.
The Notices shall be addressed as follows:
If to Owner:
EQK Realty Investors 1
c/o Newleaf Corporation
2810 Spring Road, Suite 106
Atlanta, Georgia 30339
Fax #: (770) 433-8550
Attn: Lloyd T. Whitaker
with a duplicate copy to:
Wolf, Block, Schorr and Solis-Cohen LLP
1650 Arch Street, 22nd Floor
Philadelphia, PA 19103
Fax #: 215-977-2346
Attn: Robert A. Silverman, Esquire
If to Agent:
Granite Partners, L.L.C.
1177 West Loop South, Suite 1610
Houston, TX 77027
Fax #: 713-479-5010
Attn: Richard H. Rudd, Sr.
11. CONFIDENTIALITY. Agent shall maintain Owner's confidentiality
in accordance with the following provisions:
11.1 PURCHASERS AND CO-BROKERS. Agent shall obtain from each
prospective purchaser and co-broker a confidentiality letter
regarding Confidential Information (as defined in Paragraph
11.2 below) in the form attached hereto as Exhibit "A".
11.2 DEFINITION. As used herein, "Confidential Information" means
all data, reports, interpretations, forecasts, and records
containing or otherwise reflecting information
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concerning the property, whether written or oral, which is
not available to the general public and which the Owner will
provide to Agent in the course of this engagement, together
with analysis, compilations, studies or other documents,
whether prepared by Agent or others, which contain or
otherwise reflect such information. Agent agrees that all
Confidential Information will be held and treated by Agent,
its agents and employees in confidence and will not, except
as hereinafter provided, without the prior consent of Owner,
be disclosed by Agent or its agents or employees, in any
manner whatsoever, in whole or in part, and will not be used
by Agent or its agents or employees other than in connection
with this engagement. Moreover, Agent further agrees (i) to
disclose Confidential Information only to its agents and
employees who need to know the Confidential Information for
purposes of this Agreement and (ii) Agent will be satisfied
that such agents and employees will act in accordance
herewith. Notwithstanding the foregoing, the following will
not constitute "Confidential Information" for purposes of
this Agreement: information which is in or enters the public
domain other than by Agent's breach of this Agreement and
information which is obtained by Agent from a third person
who, insofar as is known to Agent, is not prohibited from
transmitting the information to Agent by a contractual, legal
or fiduciary obligation to the Owner. The written
Confidential Information will be returned to the Owner
promptly upon its request or the expiration or earlier
termination of this Agreement.
Oral Confidential Information and any written Confidential
Information not so requested and returned will be, at Agent's
option, held by Agent and kept subject to the terms of this
agreement or destroyed. In the event that Agent is requested
or required (by oral question, interrogatories, requests for
information or documents, subpoena, civil investigative
demand or other process) to disclose (i) any Confidential
Information or (ii) any information relating to Agent's
opinion, judgment or recommendations concerning the Property
as developed from Confidential Information, Agent will
provide Owner with prompt notice of such request or
requirement so Owner may seek an appropriate protective order
or waiver of Agent's compliance with the provisions of this
Agreement. If, failing the entry of a protective order prior
to the receipt of a waiver hereunder, Agent is, in the
opinion of Agent's counsel, compelled to disclose
Confidential Information, Agent may disclose that portion of
the Confidential Information which Agent's counsel advises
Agent that Agent is compelled to disclose.
In any event, Agent will not oppose action by the Owner to
obtain an appropriate protective order to other reliable
assurance that confidential treatment will be accorded the
Confidential Information.
12. MISCELLANEOUS.
12.1 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between Owner and Agent with respect to the
Property. There are no prior or additional agreements,
conditions or understandings except for those set forth in
this Agreement.
12.2 COUNTERPART EXECUTION. This Agreement may be executed in
separate counterparts. It shall be deemed fully executed when
each party has signed at least one counterpart, even if no
single counterpart contains the signatures of all the
parties.
12.3 APPLICABLE LAW. This Agreement shall be governed by the laws
of the State of Pennsylvania.
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12.4 ASSIGNMENT. This Agreement may not be assigned by either
party without the prior written consent of the other party.
12.5 SUCCESSORS AND ASSIGNS. Subject to the preceding
subparagraph, this Agreement shall be binding upon the
parties and their respective successors and assigns.
12.6 AUTHORITY. The individual signing this Agreement on behalf of
each party represents to the other party that he has the
authority to execute this Agreement subject, in the case of
Owner, to Paragraph 12.10 below.
12.7 APPROVALS. In each case in which a party has a right of
consent, approval or satisfaction under this Agreement, such
right may be exercised in the party's sole discretion unless
expressly provided to the contrary herein.
12.8 ADVERTISING. Upon the successful completion of this
engagement, Agent will be entitled to advertise the sale of
the property at Agent's expense with the form and content
subject to Owner's reasonable approval.
12.9 ACCURACY OF INFORMATION. Owner represents to Agent that to
its knowledge, the information provided to Agent with regard
to Property is true and correct. If Agent, in connection with
its review of such information, discovers any inaccuracy,
Agent agrees to so notify Owner promptly.
12.10 BANKRUPTCY COURT APPROVAL. Owner shall submit this Agreement
for approval to the United States Bankruptcy Court for the
Middle District of Pennsylvania (the "Court"). In the event
the Court enters an order denying such approval, this
Agreement shall be null and void and the parties shall be
relieved of their respective obligations hereunder. The
respective parties shall use reasonable efforts to obtain
Court approval hereof, including attendance at any hearings
scheduled to consider such approval.
12.11 EXCULPATION. The Amended and Restated Declaration of Trust
establishing Owner dated February 27, 1985, as amended (the
"Declaration"), provides, and Agent agrees, that neither the
Shareholders nor the Trustees (as such terms are defined in
the Declaration) nor officers, employees or agents of the
Trust shall, in their respective capacities as such, be
personally liable, jointly or severally, for payment of the
Fee earned and payable hereunder or any other amount due
under this Agreement, and all persons shall look solely to
Owner (as defined in the Declaration), for the payment of any
amounts hereunder or the performance of any obligations under
this Agreement.
IN WITNESS THEREOF, the parties have caused this Agreement as of the 17th day of
February, 2000.
OWNER:
EQK REALTY INVESTORS I
By: /s/ Lloyd T. Whitaker
-----------------------------------------
Name: Lloyd T. Whitaker
Title: President
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AGENT:
Granite Partners, L.L.C.
By: /s/ Richard H. Rudd
-----------------------------------------
Name: Richard H. Rudd
Title: Senior Managing Director/Principal
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