Exhibit 10.3
EXCLUSIVE LISTING AGREEMENT
THIS AGREEMENT, by and between BINSWANGER, having an address at Two
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Agent") and
PRESTOLITE ELECTRIC INCORPORATED, having an address at ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("Owner").
Intending to be legally bound hereby, Agent and Owner agree as follows:
1. Exclusive Right to Sell. Subject to the terms of Section 4.1 below,
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Agent is hereby given the sole and exclusive right to list and offer for sale
for the Owner's account the land and buildings owned by Owner situated in
DECATUR, ALABAMA, located on Highway 20 West, and consisting of approximately
258,000 square feet of space on approximately 69 acres of land, (all or any part
of which is hereinafter referred to as the "Property"), provided that Agent
agrees by listing and otherwise, to use its best efforts to sell the Property
until this Agreement is terminated as herein provided. Such sale may be subject
to a "leaseback" of the Property to Owner, on terms satisfactory to Owner.
2. Term. This Agreement shall be for a term of one (1) year, beginning
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from the last date of execution of this Agreement by Agent or by Owner, and
shall terminate on such date unless extended in writing by Owner. For a period
of one (1) year following the termination of Agent's exclusive right, Agent's
authority shall continue as to those entities with whom there has been
substantial two way communication regarding the Property ("Protected
Prospects"), so that if subsequent to such termination an agreement of sale is
entered into on the Property by any such entity, or by any person, firm or
corporation in which or in whom there is an interest, relationship or connection
with such entity, whether by Agent or by Owner directly or by any other agent,
or person whomsoever, a full Commission as hereinafter defined shall be paid to
Agent. Such substantial communication must be evidenced by documented telephone
calls or written correspondence.
3. Listing Price. Agent is authorized to offer the Property for sale at
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a gross purchase price of Four Million Nine Hundred Fifty Thousand and 00/100
Dollars ($4,950,000.00), in cash or upon other such prices, terms and conditions
as Owner may from time to time approve in writing.
4. Commission. IF THE PROPERTY IS SOLD EXCEPT AS PROVIDED IN SECTION
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4.1 BELOW, NO MATTER BY WHOMSOEVER THE PROPERTY MAY BE SOLD, TRANSFERRED,
CONVEYED, EXCHANGED OR LEASED OR SUCH PURCHASER OR TENANT PROCURED, WHETHER BY
AGENT OR BY OWNER DIRECTLY OR BY ANY OTHER ENTITY WHATSOEVER, THEN, IN ANY SUCH
EVENT, OWNER AGREES THAT AGENT SHALL HAVE EARNED A COMMISSION AND OWNER AGREES
TO PAY TO AGENT A SALE COMMISSION OF SIX PERCENT (6%) OF THE GROSS AGGREGATE
PURCHASE PRICE (the "Commission").
4.1 Agent acknowledges that Owner (i) is attempting to sell Owner's
motor manufacturing business currently operated at the Property and (ii) may
attempt to sell the switch business currently operated at the Property. Agent
acknowledges and agrees that in the event Owner sells the Property in
conjunction with the sale of Owner's motor manufacturing business and/or Owner's
switch business, no Commission shall be due and payable by Owner to Agent
pursuant to Section 4; provided, however, that in such case Owner shall be
obligated to pay to Agent the cancellation fee specified in Section 5.
4.2 It is understood and agreed that the Property will not be offered
for lease to third parties; however, in the event Owner decides to offer the
Property for lease to third parties during the term of this Agreement, Agent
shall be granted the sole and exclusive right to list and offer the Property for
lease for the balance of the term of this Agreement. If, prior to the
termination of this Agreement (or after such termination as hereinafter set
forth), Owner leases or agrees to lease the Property, or any part thereof, to a
"Protected Prospect," Owner agrees to pay Agent a lease Commission based on the
Gross Aggregate Rental which shall be computed in accordance with Paragraph 4
hereof and paid by Owner to Agent, within fifteen (15) days of Owner's receipt
of rent payment. In the event that a lease is executed by Owner, any expansion
of space leased by such tenant or the grant thereafter of additional space, to
any such tenant, or any person, firm or corporation having an interest,
relationship or connection in or with the tenant of the lease, shall be deemed
an original letting and Commissions thereon shall be computed accordingly and
paid by Owner to Agent. It is further understood that if such tenant, or any
person, firm or corporation having an interest, relationship or connection in or
with the tenant or the lease, shall purchase the Property, or any substitute
land and/or building owned by Owner, at any time during the term of the lease,
or any extension or renewal thereof, Owner agrees to pay to Agent a sale
Commission as set forth in Paragraph 4 above; provided, however, that the
aggregate amount of leasing Commissions paid by Owner to Agent shall be credited
against such sale Commission.
5. Cancellation Fee. In the event Owner, during the term of this
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Agreement (i) elects to remove the Property from the market, whether or not for
Owner's own use, (ii) makes a donation of the Property, (iii) sells Property
pursuant to Section 4.1, or (iv) abandons (a) the Property, or (b) Owner's
interest in the Property (whether in fee or leasehold), then in any such cases,
a one-time cancellation fee of $10,000.00 for each month this Agreement is in
effect prior to cancellation, up to a maximum of $100,000.00 shall be paid to
Agent, which fee shall be paid within ten (10) days of Owner's notification to
Agent of Owner's decision to so remove the Property from the market; provided,
however, that payment of such cancellation fee does not negate Owner's
obligation to pay a Commission to Agent should a prospect of Agent purchase or
lease the Property after the payment of such cancellation fee.
6. Sale or Transfer. The acquisition of the Property, or any part
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thereof, by virtue of a purchase of a controlling capital stock interest,
controlling partnership interest or corporate assets, or by virtue of merger,
consolidation, or gift, or in any other manner whatsoever by operation of law or
otherwise, shall not be deemed and taken to be included within the term "sale"
for the purposes of this Agreement.
7. Marketing. For certain promotional or advertising expenses, Owner
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agrees to pay Agent certain marketing expenses in accordance with the Marketing
Plan attached hereto as Exhibit "A" and made a part hereof which is expressly
approved by Owner's signature below. One-half (1/2) of said amount shall be
advanced to Agent for such expenses upon Owner's receipt of a fully executed
copy of this Agreement and the balance shall be paid to Agent monthly thereafter
upon receipt of bills for such expenses as they are incurred by Agent, or
Agent's representative. Agent and Owner may subsequently agree in writing to
additional promotional or advertising expenses. It is agreed that (i) upon a
sale of the Property, any unreimbursed advertising expenses to which Owner has
previously agreed in writing shall be due and payable to Agent at the closing of
the transaction and, (ii) in the event that this Agreement shall terminate
without the Property being sold or leased, any unreimbursed advertising expenses
shall be due and payable to Agent on such termination date.
7.1 Subject to compliance with applicable laws and regulations, Agent
is hereby authorized to place an available sign on the Property which Owner
agrees shall be the only such sign permitted on the Property during the term of
this Agreement.
8. Owner's Obligations. Any and all proposed sale agreements shall
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be made in Owner's name and upon the terms and conditions acceptable to Owner
both as to legal form and substance. Agent shall have the right to cause to be
inserted therein provisions setting forth the Commissions to be paid to Agent as
provided for in this Agreement, or as may hereafter be agreed upon by Agent and
Owner, and Owner shall furnish Agent with copies of all such agreements promptly
upon their execution. In the event that Agent engages counsel to collect any
sums due to Agent hereunder, or to enforce any of the provisions hereof, then
Owner agrees to reimburse Agent, upon demand, for all reasonable fees, costs and
other incidental expenses, including, but not limited to, reasonable attorneys'
fees and costs, whether or not a suit is instituted.
8.1 Owner represents and warrants to Agent that Owner has the legal
right to sell the Property. Owner agrees that any sale entered into will include
a provision stating that the purchaser has purchased the Property without
reliance upon any representation of Owner or Agent except as explicitly set
forth therein.
8.2 During the term of this Agreement all inquiries made to Owner
pertaining to the Property shall be referred to Agent, and Owner agrees not to
negotiate with any prospective purchaser except through Agent and except as
provided in Section 4.1.
9. Environmental Disclaimer. Owner acknowledges and agrees that (i)
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Agent is not an expert in environmental matters and that Agent has not made nor
has been asked to make and shall not make any representations and warranties
with respect to the environmental conditions or suitability of the Property;
(ii) any obligation which may exist with regard to compliance with statutes,
ordinances and regulations relating to the environmental conditions is Owner's
sole responsibility; (iii) if required by law, Owner will immediately (a) notify
Agent of any knowledge of any matters of environmental concern, (b) give such
information to a potential
buyer or tenant, and (c) report such information to the appropriate governmental
authority; (iv) Owner will indemnify, defend and hold Agent harmless against any
claims, demands and liabilities, including reasonable attorney's fees and costs
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arising from or related to the environmental condition of the Property; and, (v)
the provisions of this Paragraph shall survive the termination of this
Agreement.
10. FIRPTA. Under Section 1445 of the Internal Revenue Code of 1986,
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as amended, and the regulations issued thereunder, the purchaser of the Property
may be required to withhold up to ten percent (10%) of the Purchase Price of the
Property unless Owner provides the purchaser with a "nonforeign certificate"
indicating that Owner is not a foreign person for purposes of the Internal
Revenue Code. Agent may be subject to liability if Owner issues a false
"nonforeign certificate". Owner hereby agrees to indemnify and hold Agent
harmless from liability for any tax, penalty, interest or other charge imposed
upon Agent by, through or under Owner resulting from Owner's actions or Owner's
agents' actions.
11. Dual Agency. Owner acknowledges that the Agent may present the
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Property for sale to a potential purchaser who is also represented by the Agent.
In such event, the Agent will disclose such arrangement to the Owner.
12. Representation. Owner and Agent will disclose to any prospective
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buyer that Agent represents Owner except as provided in Section 4.1.
13. Non-Discrimination. OWNER AND AGENT AGREE THAT THE PROPERTY WILL
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BE OFFERED FOR SALE AND WILL BE SOLD WITHOUT REGARD TO RACE, COLOR, RELIGIOUS
CREED, SEX, ANCESTRY, AGE, NATIONAL ORIGIN, DISABILITY OR FAMILIAL STATUS.
14. Definitions.
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The term "Gross Aggregate Purchase Price" shall mean the full
cash consideration to be paid by the purchaser to Owner pursuant to the written
sales agreement between them (other than real property tax proration payments by
purchaser to Owner), plus any principal amount of any mortgages and other liens
on the Property (a) securing deferred purchase price payable by the purchaser in
Owner's favor or (b) subject to which the purchaser accepts title to the
Property. In the case of a trade of properties or other items other than cash or
cash credits, the fair market value of such property or other items traded for
the Property shall also be included in the term "gross aggregate purchase
price." The leaseback rentals, if any, to be paid by Owner to purchaser shall be
excluded from the term "gross aggregate purchase price."
The term "Gross Aggregate Rental" shall mean the base rent and
any and all calculations of such base rent during the term of the lease and any
renewal or extension thereof. The leaseback rentals, if any, to be paid by Owner
to purchaser shall be excluded from the term "gross aggregate rental." Base rent
excludes "triple net" reimbursement payments payable by the tenant to the
landlord.
The terms "lease" and "renewal, extension or expansion" include
any arrangement by which the tenant or any person, firm, or corporation having
any interest, relationship, or connection in or with the tenant originally has
or, with respect to renewals, extensions, or expansions, continues to have the
right to use or remain in possession of all or any portion of the Property,
including, but not limited to, a lease, a license or as a holdover, but
specifically excludes a leaseback from the purchaser to Owner.
15. Miscellaneous. This Agreement and the representations and
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warranties contained herein shall be binding upon Agent and Owner and their
respective successors and assigns. Owner acknowledges that Agent may assign
Agent's rights and obligations under this Agreement to one or more affiliates of
Agent and Owner hereby consents to such assignments.
15.1 This Agreement and the terms hereof constitute the entire
agreement between Owner and Agent and no modification or amendment shall be
effective unless and until made in writing and signed by both Owner and Agent.
15.2 Agent and Owner shall acknowledge their approval of this
Agreement, and Owner shall acknowledge presentation by Agent of the "Real Estate
Brokerage Services Disclosure" which is attached hereto and made a part hereof,
as required by Alabama Real Estate Commission Rule 790-X-3-.13 (1), by signing
in the space provided below and Owner returning to Agent at least one (1) fully
executed counterpart hereof.
OWNER:
PRESTOLITE ELECTRIC INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Vice President
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Date: February 29, 2000
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AGENT:
BINSWANGER SOUTHERN (N.C.), INC.
BINSWANGER OF PENNSYLVANIA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
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Date: February 28, 2000
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