Exhibit 10.10
LEASING AGENCY AGREEMENT
between
FOUR TOWER BRIDGE ASSOCIATES,
as Owner
and
XXXXXX XXXXXX XXXXXX CORPORATION,
as Agent
for
Four Tower Bridge
Conshohocken, Pennsylvania
Dated: As of November 3, 1997
TABLE OF CONTENTS
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Page
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1. Appointment of Agent..............................................1
2. Term..............................................................1
3. Duties of Agent...................................................1
4. Compensation......................................................2
a. Initial Term of a Lease......................................2
b. Time of Payment..............................................3
c. Renewals.....................................................3
d. Rights on Expiration or Termination..........................3
5. Intentionally omitted.............................................3
6. Sale of Building; Assignability...................................3
7. Notice............................................................4
8. Assignment........................................................5
9. Default; Indemnities..............................................5
10. Subordination.....................................................5
11. Confirmation of Payment...........................................6
12. Termination of Prior Agreements...................................6
13. Whole Agreement; Existing Lease Transactions......................6
14. Successors and Assigns............................................6
15. Consent of Owner..................................................6
16. Governing Law.....................................................7
LEASING AGENCY AGREEMENT
------------------------
LEASING AGENCY AGREEMENT (the "Agreement") dated as of November 3,
1997 by and between FOUR TOWER BRIDGE ASSOCIATES, a Pennsylvania limited
partnership, as Owner ("Owner"), and XXXXXX XXXXXX XXXXXX CORPORATION, a
Pennsylvania corporation, as Agent ("Agent").
BACKGROUND
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Owner is the owner of a building consisting of approximately 85,000
rentable square feet known as Four Tower Bridge, Conshohocken, Pennsylvania (the
"Building"). Owner wishes to retain Agent to act as the leasing agent for the
Building as provided for in this Agreement, and Agent is willing to do so, upon
the terms and conditions hereinafter set forth.
NOW, THEREFORE, Owner and Agent, intending to be legally bound, hereby
agree as follows:
1. Appointment of Agent. Owner hereby appoints, retains and hires
Agent, and Agent hereby accepts appointment and agrees to act, as the exclusive
agent to list and offer for rent, for Owner's account, such space in the
Building which, as determined by Owner, is available from time to time for
leasing during the Term of this Agreement.
2. Term.
a. Subject to the terms and conditions contained herein, the
term (the "Term") of this Agreement, and the agency hereby created, shall be for
so long as Four Xxxxxx Tower Associates (or any other entity owned or controlled
by Xxxxxx X. Xxxxxx) is the Managing General Partner of Owner.
b. This Agreement shall govern all obligations of Agent and
Owner with respect to all leases for space in the Building executed during the
Term, notwithstanding the fact that negotiations with respect thereto may have
been commenced prior to the date hereof. Without the prior written consent of
Owner, Agent shall not enter into any exclusive agreements with any other
leasing agents.
c. On the expiration or termination of this Agreement, Owner
shall prepay, on and as of the date of such expiration or termination, all
earned and unpaid commissions to Agent in accordance with the provisions of
Section 4(d) hereof.
3. Duties of Agent.
a. Agent shall use its best efforts to fully lease the Building
and to keep the Building fully leased, upon such terms as shall be acceptable to
Owner during the Term of this Agreement.
b. Agent shall list from time to time through its own
organization, and, if requested to do so by Owner, through other real estate
brokers, such space in the Building as Owner may determine is vacant or
available for leasing.
c. Agent shall negotiate with prospective tenants for new
leases in the Building, and shall negotiate with tenants for the extension,
renewal, modification, amendment or termination (collectively, "amendment"), of
existing leases, pursuant to such rental and other guidelines relating to the
foregoing as shall have been approved by Owner, or are as otherwise approved by
Owner. All leases and amendments shall be submitted to Owner for approval and
execution. At the option of Owner, Owner may by specific or standing letter of
authorization, authorize Agent to execute leases and amendments in Owner's name
as Owner's agent. Agent will prepare for Owner a lease abstract for each
proposed tenant and shall update, as necessary, lease abstracts for executed
leases. Agent shall procure credit references for prospective tenants and
investigate such references.
d. Agent shall prepare all leases on the standard form of Lease
Agreement provided by Owner to Agent for use in connection with the leasing of
the Building. In addition, Agent shall from time to time submit proposed rental
guidelines to Owner for approval.
e. Agent shall develop, after consultation with Owner, a tenant
retention program consistent with those provided by entities leasing and
managing first-class office buildings in suburban Philadelphia.
f. Owner shall have the right to take any space in the Building
off the rental market in anticipation of the sale of the Building.
g. If requested by Owner, Agent will prepare and submit to
Owner for approval a promotional and advertising program for the Building. The
promotional and advertising program budget shall be submitted by Agent to Owner
and shall set forth all direct and indirect costs to Owner resulting from such
promotion or advertising. No promotion or advertising shall occur without being
approved by Owner. All promotional and advertising material shall be prepared
in accordance with applicable law. All promotional and advertising expense
shall be paid directly by Owner.
h. For any calendar quarter in which there is marketing
activity regarding the Building, Agent shall prepare and deliver to Owner a
summary in reasonable detail of the marketing activity conducted by Agent during
the preceding calendar quarter. Such summary shall include a detailed list of
all current prospective tenants of space in the Building.
4. Compensation. Owner shall pay, and Agent shall accept, as
compensation for all of Agent's services performed for the benefit of Owner
pursuant to this Agreement, commissions to be determined and paid as follows:
a. Initial Term of a Lease. Upon proper execution and delivery
during the Term of the Agreement, or during the three (3) month period referred
to in Section 4(d) below, of any lease with regard to the
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Building, including a lease or the expansion of the space occupied by a
tenant (but excluding, however, (x) leases representing relocation space for
a tenant then occupying space within the Building, except to the extent of
any increase in rental thereunder and (y) renewal leases, which are covered
by Section 4(c), below), Agent shall have earned a commission equal to the
following:
I. If Agent obtains a tenant without the cooperation of
another leasing agent, four dollars ($4.00) times the number of rentable
square feet in the premises leased; or
II. If Agent obtains a tenant with the cooperation of another
leasing agent, Agent shall be paid One Dollar and Fifty Cents ($1.50) times
the number of rentable square feet in the premises leased. The other leasing
agent shall receive such compensation as is generally prevailing in the
market.
b. Time of Payment. The commission earned for each lease as
above provided shall be paid by Owner to Agent in installments in accordance
with the following schedule:
At signing and delivery of lease 50%
Upon the date the tenant commences
payment of rent under the lease
("Lease Commencement Date") 50%
c. Renewals. If, during the Term of this Agreement, an
existing tenant gives notice of its intention to renew or to extend the term
of its existing lease, Agent shall earn a commission equal One Dollar and
Fifty Cents ($1.50) times the number of rentable square feet in the Premises
leased, payable upon commencement of the extension term.
d. Rights on Expiration or Termination. During the three
(3) month period following the termination or expiration of this Agreement,
Agent shall, if directed by Owner, continue any or all lease negotiations
which were being conducted by Agent at the time of such termination or
expiration. Such continued negotiations shall be conducted by Agent pursuant
to the provisions of this Agreement. Agent shall submit to Owner, within
thirty (30) days following such expiration or termination, a written list of
each and every active pending negotiation and prospective tenant, together
with full and complete details in respect thereof. In the event that any
such pending negotiation is consummated by execution and delivery by Owner of
a lease within such three (3) month period, then Owner shall pay to Agent a
commission therefor in accordance with the provisions of this Agreement,
provided that the tenant executing such lease shall have appeared on the
aforesaid list of prospective tenants. Such commission shall be paid in a
lump sum upon commencement of payment of rent under such lease.
5. Intentionally omitted.
6. Sale of Building; Assignability. In the event of (I) a sale
of the Building; or (II) the exercise of any remedies by the first mortgagee
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of the Property pursuant to which such mortgagee takes title to or possession
of the Property, then, in any such event, Owner shall have the right and
option, to be exercised by giving written notice thereof to Agent, to either
(a) terminate this Agreement and Agent's rights and authority hereunder, in
which event the entire unpaid balance (if any) of commissions then earned by
Agent under this Agreement shall become and be due and payable by Owner to
Agent on the date of settlement for the conveyance or transfer and upon
making such lump sum payment, Owner shall have no further liabilities or
obligations hereunder, or (b) assign this Agreement to the transferee of the
Building; provided, however, Owner shall pay the entire unpaid balance of
commissions then earned by Agent under this Agreement on the date of
assignment as if the Owner had elected to prepay such commissions pursuant to
Section 4(b) hereof, but this Agreement shall not terminate. The provisions
of this Section 6 shall apply to all subsequent conveyances or transfers of
the Building or of owner's interest therein, and the term "Owner" shall refer
to the owner for the time being of any interest in the Building.
7. Notice. All notices, demands, requests, calls and other
communications required by or permitted under this Agreement shall be in
writing (whether or not a writing is expressly required hereby), and shall be
directed as follows:
OWNER: Four Tower Bridge Associates
c/o Oliver Xxxxxx
Xxxxxx Corporation
One Tower Bridge
000 Xxxx Xxxxx Xxxxxx
Xxxx Xxxxxxxxxxxx, XX 00000
With a copy to:
Brandywine TB I, L.P.
c/o Brandywine Realty Trust
Newtown Corporate Campus
00 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxxx, XX 00000
AGENT: Xxxxxx Xxxxxx Xxxxxx Corporation
Xxx Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxxxx, XX 00000
Any notice, demand, request, call or other communication
required or permitted to be given or made under this Agreement will be deemed
given or made (i) when delivered by hand delivery at its address set forth
above, or (ii) three business days following its deposit in the U.S. Mail,
addressed to such address, postage prepaid, registered or certified, return
receipt requested (with a copy by regular U.S. mail, first class, postage
prepaid), or (iii) on the next business day following its deposit with
Federal Express or another nationally recognized express delivery service,
addressed to such address (with a copy by regular U.S. mail, first class,
postage prepaid).
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8. Assignment. Agent shall not assign any of Agent's rights or
obligations hereunder without the prior written consent of Owner, and any
such assignment shall be void.
9. Default; Indemnities.
a. If either party shall default in its obligations under
this Agreement, and such default is not cured within thirty (30) days after
the date of notice of such default, the other party shall have all rights and
remedies at law or in equity (provided however if such default is not
reasonably capable of being cured with thirty (30) days, Agent or Owner, as
the case may be, shall have such additional period within which to cure such
default as is reasonably necessary (not in excess of an additional ninety
(90) days so long as Agent or Owner, as the case may be, commences such cure
within thirty (30) days written notice of default and diligently prosecutes
such cure until completion). Notwithstanding the foregoing, if the Managing
General Partner of Owner is removed as Managing General Partner of Owner,
such removal shall automatically be a default of Agent without any further
right of Agent to cure; provided, however, that if such Managing General
Partner is ever reinstated as the Managing General Partner of Owner, Agent
shall be reinstated as Agent under this Agreement. If the defaulting party
is Agent, Owner shall have the further right to terminate this Agreement on
the terms set forth in Section 6(a) hereof.
b. Owner agrees to indemnify and hold Agent harmless from
and against any and all damages, claims, actions, obligations, and
liabilities, and to reimburse Agent for such reasonable costs, expenses and
fees incurred in defending or responding to any such claim, action,
obligation, damage or liability arising out of the proper performance of its
duties hereunder or in carrying out the directions of Owner, and from
liability from injury on the Properties suffered by any employee or other
person whatsoever, provided, however, Owner shall not indemnify Agent from or
against Agent's negligence or willful misconduct.
c. Agent agrees to indemnify and hold Owner harmless from
and against any and all damages or injuries to person or property, claims,
actions, obligations, and liabilities, and to reimburse Owner for such
reasonable costs, expenses and fees incurred in defending or responding to
any such claim, action, obligation, damage or liability by reason of Agent's
negligence or willful misconduct or the conduct of Agent outside of the scope
of its authority hereunder.
d. It is expressly agreed that the foregoing provisions of
this Section 9 shall survive the termination of this Agreement.
10. Subordination. This Leasing Agency Agreement and any
extensions, renewals, replacements or modifications thereof, and all of the
rights of Agent to collect any fees, leasing commissions or other amounts
hereunder are and shall be subject and subordinate to the rights and claims
of Brandywine Operating Partnership, L.P.("BOP") or its affiliate, under that
certain Agreement of Limited Partnership of Four Tower Bridge Associates (the
"Partnership Agreement") to receive the BOP Preferred Cumulative Return, as
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defined therein. No fees or leasing commissions shall be paid hereunder at
any time when any portion of the BOP Preferred Cumulative Return is due and
unpaid. In addition to and not in limitation of the foregoing, Agent
acknowledges that this Agreement (and Agent's rights hereunder) is subject
and subordinate to any first mortgage encumbering the Building from time to
time, and Agent shall, in confirmation of this, execute and deliver such
subordination agreement as such first mortgagee shall reasonably request.
11. Confirmation of Payment. Agent hereby confirms that, except
as set forth on Schedule "I" hereto, which Agent represents is true, complete
and correct, Agent has been paid all leasing commissions owed to Agent as of
the date hereof. Agent warrants and represents that any leases which are the
subject of current negotiation and which could give rise to the payment of a
leasing commission to Agent are as set forth in Schedule "II" attached hereto
and made a part hereof.
12. Termination of Prior Agreements. All other agreements between
Owner and Agent for the Leasing Agency of Four Tower Bridge are hereby
terminated and of no further force or affect.
13. Whole Agreement; Existing Lease Transactions. This Agreement
sets forth the entire understanding of the parties with respect to the
leasing of space in the Building. This Agreement shall govern all
compensation hereafter payable to Agent with respect to the Building,
including compensation with respect to leases in negotiation. This Agreement
supersedes in its entirety all prior Leasing Agency Agreements between Owner
and Agent. There are no other representations or agreements, either oral or
written other than as set forth herein. The parties agree that this
Agreement may be modified only by an express written amendment and not orally
or by any commission agreements contained in any future leases of space in
the Building.
14. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors and/or assigns.
15. Consent of Owner. Where the consent, approval or other action
of "Owner" is required or taken under this Agreement, that consent or
approval shall require the consent of both the Administrative General Partner
and the Managing General Partner under Owner's partnership agreement unless
the Managing General Partner is permitted to take such action under such
Agreement without the consent of the Administrative General Partner, in which
latter event only the consent or approval of the Managing General Partner
shall be required.
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16. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws, including the conflicts of laws, of
the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the parties hereto have executed this Leasing Agency
Agreement on the day and year first above mentioned.
OWNER:
FOUR TOWER BRIDGE ASSOCIATES
By: Four Xxxxxx Tower Associates
By: Four Xxxxxx Tower
Corporation, General
Partner
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
President
AGENT:
XXXXXX XXXXXX XXXXXX CORPORATION
By:/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
President
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SCHEDULE I
Due and Unpaid Commissions
[To Be Attached]
Schedule II
Leases under Negotiation
[To Be Attached]
