<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-QSB
(Mark One)
/X/ Quarterly report under Section 13 or 15 (d) of the Securities
Exchange Act of 1934
For the quarterly period ended March 31, 2000
/ / Transition report under Section 13 or 15 (d) of the Exchange Act
For the transition period from to
------- -------
Commission file number: 000-24167
EBS Building, L.L.C.
- --------------------------------------------------------------------------------
(Exact Name of Small Business Issuer as Specified in Its Charter)
Delaware 43-1794872
- ----------------------------------------- ------------------------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
c/o PricewaterhouseCoopers, LLP, 800 Market Street,
St. Louis, Missouri 63101-2695
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(Address of Principal Executive Offices)
(314)206-8500
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(Issuer's Telephone Number, Including Area Code)
N/A
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(Former Name, Former Address and Former Fiscal Year, if Changed
Since Last Report)
Check whether the issuer: (1) filed all reports required to be filed by
Section 13 or 15 (d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
Yes X No
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APPLICABLE ONLY TO ISSUERS INVOLVED IN
BANKRUPTCY PROCEEDINGS DURING THE
PRECEDING FIVE YEARS
Check whether the registrants filed all documents and reports required
to be filed by Section 12, 13 or 15 (d) of the Exchange Act after the
distribution of securities under a plan confirmed by a court.
Yes X No
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APPLICABLE ONLY TO CORPORATE ISSUERS
State the number of shares outstanding of each of the issuer's classes
of common equity, as of the latest practicable date: As of March 31, 2000, there
were 10,000,000 Class A Membership Units outstanding.
Transitional Small Business Disclosure Format (check one):
Yes No X
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<PAGE> 2
PART I
FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS.
EBS BUILDING, L.L.C.
BALANCE SHEET
MARCH 31, 2000
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
MARCH 31, 2000 DECEMBER 31, 1999
(UNAUDITED)
<S> <C> <C>
ASSETS
Rental property $ 22,261,533 $ 22,387,946
Cash 756,833 819,394
Rents receivable 436,955 454,855
Prepaid expenses -- 20,810
Lease commissions, net 999,951 1,024,593
Lease restructuring costs, net -- 8,500
Loan costs, net 145,500 174,600
Other assets 202 202
------------ ------------
Total assets $ 24,600,974 $ 24,890,900
------------ ------------
LIABILITIES
Note payable $ 6,891,683 $ 6,833,512
Accounts payable 16,045 44,744
Accrued professional fees 86,766 63,068
Accrued utilities 63,897 74,955
Accrued salaries 8,580 3,916
Accrued property taxes 93,540 --
Accrued payable other 94,638 79,719
Tenant security deposit 158,842 213,186
Prepaid rent 6,430 6,165
------------ ------------
Total liabilities 7,420,421 7,319,265
------------ ------------
MEMBERS' EQUITY:
Membership Units (Class A - 10,000,000 authorized,
issued and outstanding) -- --
Paid-in capital 19,810,522 19,810,522
Retained earnings (2,629,969) (2,238,887)
------------ ------------
Total members' equity 17,180,553 17,571,635
------------ ------------
Total liabilities and members' equity $ 24,600,974 $ 24,890,900
============= ============
</TABLE>
The accompanying notes are an integral part of these financial statements.
<PAGE> 3
EBS BUILDING, L.L.C.
STATEMENT OF OPERATIONS
FOR THE PERIOD ENDED MARCH 31, 2000
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<TABLE>
<CAPTION>
FOR THE 3 MONTHS ENDED FOR THE 3 MONTHS ENDED
MARCH 31, 2000 MARCH 31, 1999
(UNAUDITED) (UNAUDITED)
<S> <C> <C>
Income:
Rent $ 874,891 $ 763,714
Other 10,852 30,420
----------- -----------
Total income 885,743 794,134
----------- -----------
Expenses:
Maintenance 184,845 217,107
Professional fees 185,271 148,494
Utilities 164,285 179,218
General and administrative 183,899 173,196
Depreciation & amortization 243,052 252,850
Property taxes 93,540 121,879
Interest expense 163,546 33,820
Other operating expenses 58,387 32,832
----------- -----------
Total expenses 1,276,825 1,159,396
----------- -----------
Net loss $ (391,082) $ (365,262)
----------- -----------
Net loss per Class A Unit - primary
$ (0.04) $ (0.04)
Net loss per Class A Unit - fully diluted
$ (0.04) $ (0.04)
</TABLE>
The accompanying notes are an integral part of these financial statements.
<PAGE> 4
EBS BUILDING, L.L.C.
STATEMENT OF CHANGES IN MEMBERS' EQUITY
FOR THE PERIOD ENDED MARCH 31, 2000
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<TABLE>
<CAPTION>
CLASS A CLASS B
MEMBERSHIP MEMBERSHIP PAID IN RETAINED
UNITS UNITS CAPITAL EARNINGS TOTAL
<S> <C> <C> <C> <C> <C>
Balance, December 31, 1999 10,000,000 - $ 19,810,522 $ (2,238,887) $ 17,571,635
Units transferred (unaudited) -- - -- -- --
Year to date loss (unaudited) -- - -- (391,082) (391,082)
------------ --------- ------------ ------------ ------------
Balance, March 31, 2000 (unaudited) 10,000,000 - $ 19,810,522 $ (2,629,969) $ 17,180,553
============ ========= ============ ============ ============
</TABLE>
The accompanying notes are an integral part of these financial statements.
<PAGE> 5
EBS BUILDING, L.L.C.
STATEMENT OF CASH FLOWS
FOR THE PERIOD ENDED MARCH 31, 2000
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
FOR THE 3 MONTHS ENDED FOR THE 3 MONTHS ENDED
MARCH 31, 2000 MARCH 31, 1999
(UNAUDITED) (UNAUDITED)
<S> <C> <C>
Cash flows from operating activities:
Net loss $ (391,082) $ (365,262)
Reconciliation of net loss to cash flows
provided by operating activities:
Depreciation & amortization expense 243,052 252,850
Changes in operating assets and liabilities:
Decrease/(Increase) in assets, excluding cash
rental property and capitalized lease costs (15,687) (167,569)
Increase in liabilities, excluding note 42,985 1,183,460
payable
----------- -----------
Cash flows provided by operating activities (120,732) 903,479
----------- -----------
Cash flows from investing activities:
Capital Expenditures (net) -- (2,289,176)
----------- -----------
Cash flows used by investing activities -- (2,289,176)
----------- -----------
Cash flows from financing activities:
Proceeds from note payable 58,171 1,413,998
----------- -----------
Cash flows provided by financing activities 58,171 1,413,998
----------- -----------
Net increase/(decrease) in cash (62,561) 28,301
Cash, beginning of period 819,394 512
----------- -----------
Cash, end of period $ 756,833 $ 28,813
=========== ===========
</TABLE>
The accompanying notes are an integral part of these financial statements.
<PAGE> 6
EBS BUILDING, L.L.C.
NOTES TO FINANCIAL STATEMENTS (UNAUDITED)
MARCH 31, 2000
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1. The accompanying unaudited financial statements, in the opinion of the
Manager, include all adjustments necessary for a fair presentation of
the results for the interim periods presented. These adjustments
consist of normal recurring accruals. The financial statements are
presented in accordance with the requirements of Form 10-QSB and
consequently do not include all the disclosures required by generally
accepted accounting principles. For further information, refer to the
financial statements and notes thereto for the year ended December 31,
1999 included in the Company's Form 10-KSB filed on March 30, 2000.
2. The following table sets forth the computation of primary and fully
diluted earnings (loss) per unit for the periods ended:
<TABLE>
<CAPTION>
For the For the
3 Months Ended 3 Months Ended
March 31, 2000 March 31, 1999
(unaudited) (unaudited)
<S> <C> <C>
Numerator:
Net Earnings/(Loss) - Primary and Diluted $ (391,082) $ (365,262)
============== ==============
Denominator:
Weighted Average Units Outstanding - Primary
10,000,000 10,000,000
Effect of Potentially Dilutive Units
-- --
-------------- --------------
Units Outstanding - Diluted
10,000,000 10,000,000
============== ==============
Primary Earnings/(Loss) per Unit $ (0.04) $ (0.04)
============== ==============
Diluted Earnings/(Loss) per Unit $ (0.04) $ (0.04)
============== ==============
</TABLE>
3. On June 18, 1999, the Company entered into a $12,000,000 revolving line
of credit with FINPRO, L.L.C. (the "Line of Credit"). The Line of
Credit replaces the $5,200,000 line of credit previously extended by
First Bank which became due and payable on June 23, 1999. The Company
presently intends to use the Line of Credit for working capital needs
and tenant improvements. Borrowings under the Line of Credit bear
interest at an annual rate of LIBOR plus 3.5%. As of March 31, 2000,
the Company had outstanding borrowings of $6,891,683 under the Line of
Credit.
4. Effective January 1, 2000, Edison Brothers Stores, Inc. reduced their
lease space from 28,774 square feet to 18,587 square feet. Effective
April 1, 2000, the lease converts to a month-to-month tenancy, whereby
Edison may terminate the lease by giving thirty (30) days prior written
notice of such termination. In no event will this month-to-month
tenancy extend beyond June 30, 2000.
<PAGE> 7
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATION.
During the forthcoming twelve months of operations, the Company intends
to continue owning, managing, maintaining, repairing, leasing, selling,
hypothecating, mortgaging or otherwise dealing with the building located at 501
North Broadway, St. Louis, Missouri (the "Building"). Further, the Company
intends to continue actively marketing the Building for sale during the
forthcoming twelve months as well as to continue to secure additional tenant
leasing agreements.
On April 6, 2000, the Company terminated Insignia/ESG, Inc. as the
Company's exclusive leasing agent and amended the existing Commercial Property
Management Agreement to reflect such termination. The Company entered into a
new Exclusive Listing Agreement with Colliers Turley Martin Tucker, Inc.
("Colliers") on April 21, 2000, thereby, granting Colliers the exclusive right
to obtain tenants for vacant space in the Building. Colliers shall receive
commissions of up to five percent of gross rents paid by the tenants.
During the three months ended March 31, 2000, the Company's rental
income increased by 14.6% over the first quarter of the prior year, from
$763,714 during the first quarter of 1999 to $874,891 during the first quarter
of 2000. Such increase was attributed to the commencement of certain new leases,
including a lease with Stifel Nicolaus, which commenced during February 1999.
The Company's total expenses also increased by 10.1% over the first quarter of
the prior year. This increase in expenses is primarily attributed to a $129,726
increase in interest expense during the first quarter of 2000 as compared to the
first quarter of the prior year. Such increase in cost is related to financing
additional tenant improvements and commission costs associated with new tenant
leases. Property taxes accrued during the first quarter of 2000 declined by
23.3% as compared to the prior year as the result of a reassessment of the tax
liability at the end of 1999.
During June 1999, the Company entered into a $12,000,000 revolving line
of credit with FinPro, L.L.C. to cover any shortfalls in cash flows (the "Line
of Credit"). The balance outstanding under the Line of Credit as of March 31,
2000 was $6,891,683. Such funds were primarily used to finance tenant
improvement and commission payments. Management believes that funds from
operations and the Company's present availability under its revolving line of
credit provide sufficient resources to meet the Company's present and
anticipated financing needs.
<PAGE> 8
PART II
OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits (listed by numbers corresponding to the Exhibit
Table of Item 601 of Regulation S-B)
3.1: Articles of Organization of the Issuer filed with the
Delaware Secretary of State on September 24, 1997
incorporated by reference to the Issuer's
Registration Statement on Form 10-SB filed on April
30, 1998, Exhibit 2.1.
3.2: Members Agreement of EBS Building, L.L.C. a Limited
Liability Company, dated as of September 26, 1997
incorporated by reference to the Issuer's
Registration Statement on Form 10-SB filed on April
30, 1998, Exhibit 2.2.
4: See the Members Agreement, referenced as Exhibit 3.2.
10.6: Lease by and among EBS Building, L.L.C., Stifel
Financial Corp. and Stifel, Nicolaus & Company,
Incorporated, dated September 30, 1998 incorporated
by reference to the Issuer's Registration Statement
on Form 10-QSB filed on November 13, 1998, Exhibit
10.6.
10.7: Lease by and between EBS Building, L.L.C. and Edison
Brothers Stores, Inc., dated September 30, 1998
incorporated by reference to the Issuer's
Registration Statement on Form 10-QSB filed on
November 13, 1998, Exhibit 10.7.
10.8: Assignment of Lease by and between EBS Building,
L.L.C. and Edison Brothers Stores, Inc., dated
September 30, 1998 incorporated by reference to the
Issuer's Registration Statement on Form 10-QSB filed
on November 13, 1998, Exhibit 10.8.
10.9: First Amendment to Lease by and among EBS Building,
L.L.C., Stifel Financial Corp. and Stifel, Nicolaus &
Company, Incorporated, dated December 1, 1998,
incorporated by reference to the Issuer's Annual
Report on Form 10-KSB, filed March 31, 1999.
10.10: Second Amendment to Lease by and among EBS Building,
L.L.C., Stifel Financial Corp. and Stifel, Nicolaus &
Company, Incorporated, dated February 1, 1999
incorporated by reference to the Issuer's Annual
Report on Form 10-KSB, filed March 31, 1999.
10.11: First Extension and Modification Agreement by and
between EBS Building, L.L.C. and First Bank dated
March 15, 1999 incorporated by
<PAGE> 9
reference to the Issuer's Annual Report on
Form 10-KSB, filed March 31, 1999.
10.12: Second Extension and Modification Agreement by and
between EBS Building, L.L.C. and First Bank dated
March 15, 1999 incorporated by reference to the
Issuer's Annual Report on Form 10-KSB, filed March
31, 1999.
10.13: Additional Promissory Note, by and between EBS
Building, L.L.C. and First Bank, dated March 23, 1999
incorporated by reference to the Issuer's Annual
Report on Form 10-KSB, filed March 31, 1999.
10.14: Amendment to Deed of Trust by and among EBS Building,
L.L.C., First Bank and First Land Trustee Corp.,
dated March 23, 1999 incorporated by reference to the
Issuer's Annual Report on Form 10-KSB, filed March
31, 1999.
10.15: Amendment to Assignment of Leases and Rents by and
between EBS Building, L.L.C. and First Bank, dated
March 23, 1999 incorporated by reference to the
Issuer's Annual Report on Form 10-KSB, filed March
31, 1999.
10.16 Credit Facility Agreement by and between EBS
Building, L.L.C. and FinPro, L.L.C., dated June 18,
1999, incorporated by reference to the Issuer's
Quarterly Report on Form 10-QSB, filed August 13,
1999.
10.17 Note by and between EBS Building, L.L.C. and FinPro,
L.L.C., dated June 18, 1999, incorporated by
reference to the Issuer's Quarterly Report on Form
10-QSB, filed August 13, 1999.
10.18 Deed of Trust, Security Agreement and Fixture Filing
by and between EBS Building, L.L.C. and FinPro,
L.L.C., dated June 18, 1999, incorporated by
reference to the Issuer's Quarterly Report on Form
10-QSB, filed August 13, 1999.
10.19 Environmental Indemnity Agreement by and between EBS
Building, L.L.C. and FinPro, L.L.C., dated June 18,
1999, incorporated by reference to the Issuer's
Quarterly Report on Form 10-QSB, filed August 13,
1999.
10.20 First Amendment to Commercial Property Management
Agreement by and between EBS Building, L.L.C. and
Insignia/ESG, Inc., dated April 6, 2000.
10.21 Exclusive Listing Agreement by and between EBS
Building, L.L.C. and Colliers Turley Martin
Tucker, Inc., dated April 21, 2000.
27: Financial Data Schedule.
<PAGE> 10
(b) Reports on Form 8-K. The Issuer did not file any reports on Form
8-K during the first fiscal quarter.
<PAGE> 11
SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
REGISTRANT:
EBS Building, L.L.C.
By: PricewaterhouseCoopers LLP, as Manager
By: /s/ Keith F. Cooper
------------------------------
Keith F. Cooper, Partner
Date: May 15, 2000
<PAGE> 12
Exhibit Index
3.1: Articles of Organization of the Issuer filed with the
Delaware Secretary of State on September 24, 1997
incorporated by reference to the Issuer's
Registration Statement on Form 10-SB filed on April
30, 1998, Exhibit 2.1.
3.2: Members Agreement of EBS Building, L.L.C. a Limited
Liability Company, dated as of September 26, 1997
incorporated by reference to the Issuer's
Registration Statement on Form 10-SB filed on April
30, 1998, Exhibit 2.2.
4: See the Members Agreement, referenced as Exhibit 3.2.
10.6: Lease by and among EBS Building, L.L.C., Stifel
Financial Corp. and Stifel, Nicolaus & Company,
Incorporated, dated September 30, 1998 incorporated
by reference to the Issuer's Registration Statement
on Form 10-QSB filed on November 13, 1998, Exhibit
10.6.
10.7: Lease by and between EBS Building, L.L.C. and Edison
Brothers Stores, Inc., dated September 30, 1998
incorporated by reference to the Issuer's
Registration Statement on Form 10-QSB filed on
November 13, 1998, Exhibit 10.7.
10.8: Assignment of Lease by and between EBS Building,
L.L.C. and Edison Brothers Stores, Inc., dated
September 30, 1998 incorporated by reference to the
Issuer's Registration Statement on Form 10-QSB filed
on November 13, 1998, Exhibit 10.8.
10.9: First Amendment to Lease by and among EBS Building,
L.L.C., Stifel Financial Corp. and Stifel, Nicolaus &
Company, Incorporated, dated December 1, 1998,
incorporated by reference to the Issuer's Annual
Report on Form 10-KSB, filed March 31, 1999.
10.10: Second Amendment to Lease by and among EBS Building,
L.L.C., Stifel Financial Corp. and Stifel, Nicolaus &
Company, Incorporated, dated February 1, 1999
incorporated by reference to the Issuer's Annual
Report on Form 10-KSB, filed March 31, 1999.
10.11: First Extension and Modification Agreement by and
between EBS Building, L.L.C. and First Bank dated
March 15, 1999 incorporated by reference to the
Issuer's Annual Report on Form 10-KSB, filed March
31, 1999.
10.12: Second Extension and Modification Agreement by and
between EBS Building, L.L.C. and First Bank dated
March 15, 1999 incorporated by
<PAGE> 13
reference to the Issuer's Annual Report on
Form 10-KSB, filed March 31, 1999.
10.13: Additional Promissory Note, by and between EBS
Building, L.L.C. and First Bank, dated March 23, 1999
incorporated by reference to the Issuer's Annual
Report on Form 10-KSB, filed March 31, 1999.
10.14: Amendment to Deed of Trust by and among EBS Building,
L.L.C., First Bank and First Land Trustee Corp.,
dated March 23, 1999 incorporated by reference to the
Issuer's Annual Report on Form 10-KSB, filed March
31, 1999.
10.15: Amendment to Assignment of Leases and Rents by and
between EBS Building, L.L.C. and First Bank, dated
March 23, 1999 incorporated by reference to the
Issuer's Annual Report on Form 10-KSB, filed March
31, 1999.
10.16 Credit Facility Agreement by and between EBS
Building, L.L.C. and FinPro, L.L.C., dated June 18,
1999, incorporated by reference to the Issuer's
Quarterly Report on Form 10-QSB, filed August 13,
1999.
10.17 Note by and between EBS Building, L.L.C. and FinPro,
L.L.C., dated June 18, 1999, incorporated by
reference to the Issuer's Quarterly Report on Form
10-QSB, filed August 13, 1999.
10.18 Deed of Trust, Security Agreement and Fixture Filing
by and between EBS Building, L.L.C. and FinPro,
L.L.C., dated June 18, 1999, incorporated by
reference to the Issuer's Quarterly Report on Form
10-QSB, filed August 13, 1999.
10.19 Environmental Indemnity Agreement by and between EBS
Building, L.L.C. and FinPro, L.L.C., dated June 18,
1999, incorporated by reference to the Issuer's
Quarterly Report on Form 10-QSB, filed August 13,
1999.
10.20 First Amendment to Commercial Property Management
Agreement by and between EBS Building, L.L.C. and
Insignia/ESG, Inc., dated April 6, 2000.
10.21 Exclusive Listing Agreement by and between EBS
Building, L.L.C. and Colliers Turley Martin
Tucker, Inc., dated April 21, 2000.
27: Financial Data Schedule.
<PAGE> 1
EXHIBIT 10.20
FIRST AMENDMENT TO COMMERCIAL PROPERTY
MANAGEMENT AGREEMENT
This FIRST AMENDMENT TO COMMERCIAL PROPERTY MANAGEMENT AGREEMENT (the
"First Amendment") is made and entered into as of the 6th day of April, 2000, by
and between EBS BUILDING, L.L.C., a Delaware limited liability company
("Owner"), and INSIGNIA/ESG, INC., a Delaware corporation ("Manager").
WITNESSETH:
WHEREAS, Owner and Manager entered into a certain Commercial Property
Management and Leasing Agreement dated December 31, 1997 (the "Agreement") for
that certain real estate project owned by Owner and improved with buildings and
related parking facilities and common areas (as more fully described therein,
the "Project") commonly known as The Edison Building and located in the City of
St. Louis, Missouri; and
WHEREAS, Owner has asked to terminate the Agreement effective
immediately with respect to Manager's leasing and marketing rights and
obligations relating to the Project, but otherwise has asked to retain Manager
in connection with the management of the Project, and Manager is agreeable with
such modifications to the relationship of the parties under the Agreement, in
connection with which Manager is willing to waive any sixty (60) day notice
period with respect to cancellation under Section 2.2(d) of the Agreement; and
WHEREAS, words and phrases having defined meanings in the Agreement
shall have the same respective meanings when used herein, unless otherwise
expressly defined herein; and
NOW, THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree, effective as of the date hereof, as
follows:
1. The title of the Agreement and all references to the
Agreement are hereby modified to delete the words "AND LEASING" from the same,
so that the same shall be entitled "Commercial Property Management Agreement."
2. Section 1.1 of the Agreement is hereby amended in its entirety to
read as follows:
1.1 Appointment. Owner hereby appoints Manager as the manager of the
Project and Manager hereby accepts such appointment upon the terms,
covenants and conditions set forth herein. Manager agrees to use
reasonable efforts and to cooperate with Owner's leasing agent for the
Project, all at no additional cost to Owner.
<PAGE> 2
3. No cancellation fee under Section 2.2(d) of the Agreement shall be
payable in connection with this First Amendment and the termination of the
Agreement with respect to Manager's leasing and marketing rights and obligations
relating to the Project.
4. No cancellation fee under Section 2.3(a) of the Agreement shall be
payable in connection with this First Amendment and the termination of the
Agreement with respect to Manager's leasing and marketing rights and obligations
relating to the Project.
5. A new Section 2.6 is hereby added to the Agreement to read as
follows:
2.6 Termination of Leasing Obligations. Manager shall have no leasing
and/or marketing rights and shall have no claims as broker with respect to
the Project from and after the date hereof, except only with respect to
those persons and entities whose lease proposals for a portion of the
Project have been approved by Owner prior to the date hereof ("Manager
Contacts"), which Manager Contact(s), as well as the terms, conditions and
commission to be paid in the event a portion of the Project is leased to
said Manager Contact(s), are detailed on the schedule attached hereto as
EXHIBIT "1" and incorporated herein by reference.
6. Section 4.2 of the Agreement is hereby deleted in its entirety.
7. The language of clause (a) of Section 9.2 of the Agreement is hereby
amended by deleting the reference to "Exhibit `D'" and replacing the same with a
reference to "Exhibit `1'".
8. The first grammatical sentence of Section 9.4 is hereby amended in
its entirety to read as follows:
"During the term of this Agreement, Owner shall make available to
Manager finished office space (the "Management Office") on a rent-free
basis in an amount not to exceed 3,000 square feet, and sufficient to allow
Manager to provide first class management and construction supervision
activities for the benefit of the Project."
9. "EXHIBIT D" to the Agreement is hereby deleted in its entirety.
10. Miscellaneous.
a. This First Amendment may be executed in one or more counterparts,
each of which shall be deemed an original and all such counterparts, taken
together, shall constitute but one and the same instrument. Facsimile signatures
on any counterpart shall be effective as an original signature, but the parties
hereto agree to deliver to the other original signatures within thirty (30) days
after the date of this First Amendment.
2
<PAGE> 3
b. Except as expressly amended and modified hereby, all of the terms and
provisions of this Agreement shall remain unchanged and in full force and effect
and are hereby ratified and confirmed.
c. This First Amendment shall be binding on, and shall inure to the
benefit of, the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, Owner and Manager have respectively signed
this First Amendment to Commercial Property Management Agreement dated and
effective as of the day and year first written above.
OWNER: MANAGER:
EBS Building, L.L.C., Insignia/ESG, Inc.
a Delaware limited liability company a Delaware corporation
By: PricewaterhouseCoopers L.L.P., By:/s/ J. John Reis
its Manager -------------------
Regional Director
By:/s/ Keith F. Cooper
-------------------
Partner
3
<PAGE> 4
EXHIBIT "1"
MANAGER CONTACTS & COMMISSION PAYMENT SCHEDULE
A. MANAGER ONLY; CO-BROKER NOT INVOLVED:
DEAL TYPE - NEW LEASE (AS DESIGNATED IN THE CHART ON THE FOLLOWING
PAGE): Manager shall be paid a commission of 5% of gross rentals to be
paid by the Manager Contact during years 1 - 5 of the initial term of
the lease and 3% thereafter.
DEAL TYPE - RENEWAL (AS DESIGNATED IN THE CHART ON THE FOLLOWING PAGE):
Manager shall be paid a commission of 2% of gross rentals to be paid by
the Manager Contact during any renewal term(s) of the lease. This
provision does not relate to renewals of any new lease entered into with
a Manager Contact.
B. MANAGER WITH CO-BROKER INVOLVED:
DEAL TYPE - NEW LEASE (AS DESIGNATED IN THE CHART ON THE FOLLOWING
PAGE): Manager shall be paid a commission of 2.5% of gross rentals to be
paid by the Manager Contact during years 1 - 5 of the initial term of
the lease and 1.5% thereafter. In addition, the Co-Broker shall be paid
at the rate of 3.5% for years 1 - 5 and 1.5% thereafter.
DEAL TYPE - RENEWAL (AS DESIGNATED IN THE CHART ON THE FOLLOWING PAGE):
Manager shall be paid a commission of 2% of gross rentals to be paid by
the Manager Contact during any renewal term(s) of the lease. Any fees to
be paid to a Co-Broker for a renewal term shall require the prior
approval of Owner on a case-by-case basis. This provision does not
relate to renewals of any new lease entered into with a Manager Contact.
The term "gross rentals" as used in this Exhibit "1" shall mean and refer to the
total of any annual base rent or fixed rent payable by a Manager Contact under
any lease for the initial lease term or renewal lease term, as the case may be.
A commission will be considered earned if, at any time during the 90-day period
following the date of this First Amendment (the "Initial Period"), Owner (but
not any successor in interest to Owner) enters into a lease for vacant space in
the Project with a Manager Contact as set forth below. In addition, a commission
will be considered earned if at any time during the period commencing ninety-one
(91) days and ending one hundred eighty (180) days following the date of this
First Amendment, Owner (but not any successor in interest to Owner) enters into
a lease for vacant space in the Project with a Manager Contact, provided that
(a) the principal terms of such lease have been previously agreed to in writing
by the Owner and Manager Contact prior to the end of the Initial Period, and (b)
the terms of the lease entered into substantially conform to the terms agreed
upon during the Initial Period.
Commissions shall be paid one-half upon execution of a new lease agreement, and
one-half upon occupancy by the Manager Contact. Commissions for expansions of
space and/or renewal terms shall be paid in full upon execution of the
appropriate documentation.
4
<PAGE> 5
ONE FINANCIAL PLAZA
MANAGER CONTACTS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
MANAGER CONTACT ADDRESS DEAL
TYPE
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Inflow 1860 Lincoln Street, Dallas, TX New
- ------------------------------------------------------------------------------------------------------------
Anheuser Busch 701 Market Street, St. Louis, MO New
- ------------------------------------------------------------------------------------------------------------
Evans & Dixon 100 N. Broadway, St. Louis, MO New
- ------------------------------------------------------------------------------------------------------------
Energizer, Inc. Ralston Purina Campus, St. Louis, MO New
- ------------------------------------------------------------------------------------------------------------
SW Bell 1010 Pine Street, S. Louis, MO New
- ------------------------------------------------------------------------------------------------------------
Habanero Computing Solutions, Inc. 3115 S. Grand, St. Louis, MO New
- ------------------------------------------------------------------------------------------------------------
Sandberg, Phoenix, von Gontard, PC 515 N. Sixth St., St. Louis, MO New
- ------------------------------------------------------------------------------------------------------------
Lewis & Rice 500 N. Broadway New
- ------------------------------------------------------------------------------------------------------------
Trilinear Corp 712 N. Second St., St. Louis, MO New
- ------------------------------------------------------------------------------------------------------------
CCMSI 133 S. 11th Street, St. Louis, MO New
- ------------------------------------------------------------------------------------------------------------
White Coleman 500 Washington Ave., St. Louis, MO Renewal
- ------------------------------------------------------------------------------------------------------------
The Witan Company, LLC 500 Washington Ave., St. Louis, MO Renewal
- ------------------------------------------------------------------------------------------------------------
Daniel Henry Insurance 2350 Market Street, St. Louis, MO New
- ------------------------------------------------------------------------------------------------------------
Secure Networks 1008 New Hampshire, Kansas City, MO New
- ------------------------------------------------------------------------------------------------------------
Goldstein & Price 100 N. Broadway, St. Louis, MO New
- ------------------------------------------------------------------------------------------------------------
Peavey Barge 100 N. Broadway, St. Louis, MO New
- ------------------------------------------------------------------------------------------------------------
Michael Fox, Inc. 500 Washington Ave., St. Louis, MO Renewal
- ------------------------------------------------------------------------------------------------------------
Husch & Eppenberger 100 N. Broadway, St. Louis, MO New
- ------------------------------------------------------------------------------------------------------------
</TABLE>
5
<PAGE> 1
EXHIBIT 10.21
EXCLUSIVE LISTING AGREEMENT
THIS EXCLUSIVE LISTING AGREEMENT ("Agreement") is made as of the 21st
day of April, 2000, by and between EBS BUILDING, L.L.C., a Delaware limited
liability company, c/o PricewaterhouseCoopers LLP, 800 Market Street, Suite
1800, St. Louis, Missouri 63101 ("Owner") and COLLIERS TURLEY MARTIN TUCKER,
INC. , a Missouri corporation, 34 North Meramec, Suite 500, Clayton, Missouri
63105 ("Broker").
WITNESSETH:
WHEREAS, Owner owns the building presently known as One Financial Plaza,
with an address of 500 North Broadway, 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 lease 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 obtain tenants for
vacant space in the Property, including the negotiation of renewals of
leases, for the term of this Agreement. Notwithstanding anything to the
contrary herein or elsewhere, all tenants, all terms and conditions of
all lease proposals and all leases and renewals shall be subject to
Owner's sole and absolute discretion. 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 lease proposals or leases or renewals; accordingly, a
lease (or any renewal thereof) shall become effective only when (a)
signed by an authorized signatory on behalf of Owner and tenant and (b)
delivered by Owner to such tenant.
2. TERM
The term of this Agreement shall end, and this Agreement shall terminate
and be of no further force and effect, on October 31, 2001; 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,
<PAGE> 2
(c) Owner shall have the further right to terminate this Agreement and
end the term without cause immediately upon the sale of the Property,
the sale, merger or consolidation of Owner, or the mortgaging of the
Property, 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 leasing vacant space in the
Property as promptly as possible, including promotional, marketing and
lease up activities, using its diligent and best efforts, skill,
judgment, and abilities to show space available for lease within the
Property, offer such space for lease, procure tenants for such space,
cooperate with outside brokers representing such tenants, obtain
financial and reference information on such tenants, and negotiate term
sheets and leases of such space with such tenants, in accordance with
the economics (e.g. full service rates per rentable square foot, minimum
and maximum lease terms, expense stops or base years, etc.) and other
terms and conditions as may be directed by Owner from time to time.
Broker further agrees to take all actions reasonably required to
effectuate the renewal or extension of any lease during the term of this
Agreement. Inquiries for any leases, renewals or extensions or other
agreements for the rental, use or occupancy of 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 leases
and other documentation, to provide legal advice in connection with
leasing issues at the Property, and to institute and defend any and all
legal proceedings associated with leasing at 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 (a) provide monthly
activity reports to Owner on or before the 20th day of each calendar
month, detailing the status of the leasing progress of the Property, and
reflecting leases or renewals or extensions out for signature, proposals
outstanding, prospects shown space within the Property, active
prospects, the stacking plan for the Property, and other marketing
activities, and (b) cooperate in the preparation of the Budget and
revisions to the Budget relating to the ownership and operation of the
Property. 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 LEASE
Upon the lease of vacant space in the Property pursuant to a written
lease executed during the term of this Agreement by a tenant 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 due and payable in two equal installments: (a) fifty
2
<PAGE> 3
percent (50%) upon the last to occur of (i) the execution of the lease
by all parties, (ii) the deposit with Owner of the security deposit, if
any, required under the lease, or (iii) the satisfaction or waiver of
the last of the contingencies, if any, to which the lease may be
subject, and (b) fifty percent (50%) upon the last to occur of (i) the
commencement date of the lease, (ii) the date the tenant accepts
occupancy of the leased premises, or (iii) the first date on which rent
is actually paid if the rent commencement date shall be later than the
commencement of the term. If a cooperating broker has participated in
procuring a lease, 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. Notwithstanding anything to the contrary
herein or elsewhere, no commission shall be owing to or claimed by
Broker (a) in the event any tenant of the Property, or any person or
entity claiming by, through or under any tenant of the Property,
exercises any option or right to renew or extend the term of a lease
unless (i) said renewal or extension is of a lease entered into prior to
the effective date of this Agreement and said renewal or extension
requires Broker to negotiate and/or calculate the rent due for the
renewal or extension period and Owner is not obligated to pay any other
listing broker a commission in connection with the renewal or extension
of said lease; or (ii) said renewal or extension is of a lease procured
by Broker and said renewal or extension is exercised during the term of
this Agreement; or (b) in the event Owner is obligated to pay a
commission to Insignia/ESG, Inc. in connection with the procurement of
such lease pursuant to the terms of that certain Commercial Property
Management and Leasing Agreement dated December 31, 1997, as amended, a
copy of the First Amendment to which is attached hereto as Exhibit B
(the "First Amendment to Property Management Agreement").
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 tenant of any vacant space
in the Property, who actually visited the Property during the term of
this Agreement with the intention of leasing space and whose proposal
for such lease was approved in writing by Owner during the term of this
Agreement. Broker's list shall include the names and addresses of such
prospective tenants, and shall identify the vacant space to be leased,
the terms of such lease, the date(s) of the visit(s), and the date of
Owner's approval of the proposal for such lease. Owner may dispute the
validity of the information on such list. 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 lease any space within 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 either: (a) within ninety
(90) days from the date of termination of this Agreement (the "Initial
Period"), Owner (but not any successor in interest to Owner) enters into
a lease for vacant space in the Property with any such listed person or
entity; or (b) within the period commencing on the ninety first (91st)
day and ending on the one hundred
3
<PAGE> 4
eightieth (180th) day after the termination of this Agreement, Owner
(but not any successor in interest to Owner) enters into a lease for
vacant space in the Property with any such listed person or entity and
both (i) the principal terms of such lease were previously agreed to in
writing by Owner and Broker prior to the end of the Initial Period and
(ii) the terms of such lease substantially conform to the terms agreed
to by Owner and Broker during the Initial Period, then unless and except
to the extent Owner shall dispute the inclusion of such person or entity
on the list so submitted by Broker, 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 and available space within the
Property; (b) prepare a marketing plan, brochures and collateral
materials for the Property; (c) engage with a competent architectural
firm approved by Owner to provide computer-aided drawings (CAD) of the
rentable areas of the Property and space planning services for
prospective tenants; and (d) 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, 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 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, advertising and leasing
activities with respect to the Property, provided, however, that Owner
shall reimburse Broker for all such costs and expenses for which Broker
has obtained the prior written approval of Owner, regardless of whether
said amounts are included in the Budget prepared by Broker pursuant to
Section 3 hereof, and excepting, however, that Owner shall pay the cost
of legal counsel selected and retained by Owner in accordance with
Section 4 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.
4
<PAGE> 5
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.
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
5
<PAGE> 6
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.
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
6
<PAGE> 7
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 12 and 19 of this Agreement.
21. EFFECTIVENESS
This Agreement shall be effective only upon the effectiveness of the
First Amendment to Property Management Agreement.
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/ Keith F. Cooper
-------------------------
Name: Keith F. Cooper
--------------------
Title: Partner
-------------------
BROKER:
COLLIERS TURLEY MARTIN TUCKER, INC.
By: /s/ Thomas E. Murray
----------------------------------
Name: Thomas E. Murray
---------------------------
Title: Senior Vice President
--------------------------
7
<PAGE> 8
EXHIBIT A
SCHEDULE OF COMMISSIONS
A. BROKER ONLY; CO-BROKER NOT INVOLVED:
DEAL TYPE - NEW LEASE:
Broker shall be paid a commission of 5% of gross rentals to be paid by
the tenant during years 1 - 5 of the initial term of the lease and 3%
thereafter.
DEAL TYPE - RENEWAL:
Broker shall be paid a commission of 2% of gross rentals to be paid by
the tenant during any renewal term(s) of the lease becoming effective
during the term of this Agreement, except to the extent Owner is
obligated to pay any other listing broker a commission.
B. BROKER WITH CO-BROKER INVOLVED:
DEAL TYPE - NEW LEASE:
Broker shall be paid a commission of 2.75% of gross rentals to be paid
by the tenant during years 1 - 5 of the initial term of the lease and
1.65% thereafter. In addition, the Co-Broker shall be paid a commission
at the rate of 2.25% for years 1 - 5 and 1.35% thereafter.
DEAL TYPE - RENEWAL:
Broker shall be paid a commission of 2% of gross rentals to be paid by
the tenant during any renewal term(s) of the lease becoming effective
during the term of this Agreement, except to the extent Owner is
obligated to pay any other listing broker a commission. Any fees to be
paid to a Co-Broker for a renewal term shall require the prior approval
of Owner on a case-by-case basis.
The term "gross rentals" as used in this Exhibit "A" shall mean and refer to the
total of any annual base rent or fixed rent payable by a tenant under any lease,
including leases for expansion space, for an initial lease term or renewal lease
term.
8
<PAGE> 9
EXHIBIT B
FIRST AMENDMENT TO
INSIGNIA/ESG AGREEMENT
9
<PAGE> 10
EXHIBIT B
FIRST AMENDMENT TO COMMERCIAL PROPERTY
MANAGEMENT AGREEMENT
This FIRST AMENDMENT TO COMMERCIAL PROPERTY MANAGEMENT AGREEMENT (the
"First Amendment") is made and entered into as of the 6th day of April, 2000,
by and between EBS BUILDING, L.L.C., a Delaware limited liability company
("Owner"), and INSIGNIA/ESG, INC., a Delaware corporation ("Manager").
WITNESSETH:
WHEREAS, Owner and Manager entered into a certain Commercial Property
Management and Leasing Agreement dated December 31, 1997 (the "Agreement") for
that certain real estate project owned by Owner and improved with buildings and
related parking facilities and common areas (as more fully described therein,
the "Project") commonly known as The Edison Building and located in the City of
St. Louis, Missouri; and
WHEREAS, Owner has asked to terminate the Agreement effective
immediately with respect to Manager's leasing and marketing rights and
obligations relating to the Project, but otherwise has asked to retain Manager
in connection with the management of the Project, and Manager is agreeable with
such modifications to the relationship of the parties under the Agreement, in
connection with which Manager is willing to waive any sixty (60) day notice
period with respect to cancellation under Section 2.2(d) of the Agreement; and
WHEREAS, words and phrases having defined meanings in the Agreement
shall have the same respective meanings when used herein, unless otherwise
expressly defined herein; and
NOW, THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree, effective as of the date hereof, as
follows:
1. The title of the Agreement and all references to the
Agreement are hereby modified to delete the words "AND LEASING" from the same,
so that the same shall be entitled "Commercial Property Management Agreement."
2. Section 1.1 of the Agreement is hereby amended in its entirety to
read as follows:
1.1 Appointment. Owner hereby appoints Manager as the manager of the
Project and Manager hereby accepts such appointment upon the terms, covenants
and conditions set forth herein. Manager agrees to use reasonable efforts and to
cooperate with Owner's leasing agent for the Project, all at no additional cost
to Owner.
<PAGE> 11
3. No cancellation fee under Section 2.2(d) of the Agreement shall be
payable in connection with this First Amendment and the termination of the
Agreement with respect to Manager's leasing and marketing rights and obligations
relating to the Project.
4. No cancellation fee under Section 2.3(a) of the Agreement shall be
payable in connection with this First Amendment and the termination of the
Agreement with respect to Manager's leasing and marketing rights and obligations
relating to the Project.
5. A new Section 2.6 is hereby added to the Agreement to read as
follows:
2.6 Termination of Leasing Obligations. Manager shall have no leasing
and/or marketing rights and shall have no claims as broker with respect to the
Project from and after the date hereof, except only with respect to those
persons and entities whose lease proposals for a portion of the Project have
been approved by Owner prior to the date hereof ("Manager Contacts"), which
Manager Contract(s), as well as the terms, conditions and commission to be paid
in the event a portion of the Project is leased to said Manager Contact(s), are
detailed on the schedule attached hereto as EXHIBIT "1" and incorporated herein
by reference.
6. Section 4.2 of the Agreement is hereby deleted in its entirety.
7. The language of clause (a) of Section 9.2 of the Agreement is hereby
amended by deleting the reference to "Exhibit `D'" and replacing the same with a
reference to "Exhibit `1'".
8. The first grammatical sentence of Section 9.4 is hereby amended in
its entirety to read as follows:
"During the term of this Agreement, Owner shall make available to
Manager finished office space (the "Management Office") on a rent-free basis in
an amount not to exceed 3,000 square feet, and sufficient to allow Manager to
provide first class management and construction supervision activities for the
benefit of the Project."
9. "EXHIBIT D" to the Agreement is hereby deleted in its entirety.
10. Miscellaneous.
a. This First Amendment may be executed in one or more counterparts,
each of which shall be deemed an original and all such counterparts, taken
together, shall constitute but one and the same instrument. Facsimile signatures
on any counterpart shall be effective as an original signature, but the parties
hereto agree to deliver to the other original signatures within thirty (30) days
after the date of this First Amendment.
2
<PAGE> 12
b. Except as expressly amended and modified hereby, all of the terms and
provisions of this Agreement shall remain unchanged and in full force and effect
and are hereby ratified and confirmed.
c. This First Amendment shall be binding on, and shall inure to the
benefit of, the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, Owner and Manager have respectively signed
this First Amendment to Commercial Property Management Agreement dated and
effective as of the day and year first written above.
OWNER: MANAGER:
EBS Building, L.L.C., Insignia/ESG, Inc.
a Delaware limited liability company a Delaware corporation
By: PricewaterhouseCoopers L.L.P., By:/s/ J. John Reis
its Manager -------------------
Regional Director
By:/s/ Keith F. Cooper
-------------------
Partner
3
<PAGE> 13
EXHIBIT "1"
MANAGER CONTACTS & COMMISSION PAYMENT SCHEDULE
A. MANAGER ONLY; CO-BROKER NOT INVOLVED:
DEAL TYPE - NEW LEASE (AS DESIGNATED IN THE CHART ON THE FOLLOWING
PAGE): Manager shall be paid a commission of 5% of gross rentals to be
paid by the Manager Contact during years 1 - 5 of the initial term of
the lease and 3% thereafter.
DEAL TYPE - RENEWAL (AS DESIGNATED IN THE CHART ON THE FOLLOWING PAGE):
Manager shall be paid a commission of 2% of gross rentals to be paid by
the Manager Contact during any renewal term(s) of the lease. This
provision does not relate to renewals of any new lease entered into with
a Manager Contact.
B. MANAGER WITH CO-BROKER INVOLVED:
DEAL TYPE - NEW LEASE (AS DESIGNATED IN THE CHART ON THE FOLLOWING
PAGE): Manager shall be paid a commission of 2.5% of gross rentals to be
paid by the Manager Contact during years 1 - 5 of the initial term of
the lease and 1.5% thereafter. In addition, the Co-Broker shall be paid
at the rate of 3.5% for years 1 - 5 and 1.5% thereafter.
DEAL TYPE - RENEWAL (AS DESIGNATED IN THE CHART ON THE FOLLOWING PAGE):
Manager shall be paid a commission of 2% of gross rentals to be paid by
the Manager Contact during any renewal term(s) of the lease. Any fees to
be paid to a Co-Broker for a renewal term shall require the prior
approval of Owner on a case-by-case basis. This provision does not
relate to renewals of any new lease entered into with a Manager Contact.
The term "gross rentals" as used in this Exhibit "1" shall mean and refer to the
total of any annual base rent or fixed rent payable by a Manager Contact under
any lease for the initial lease term or renewal lease term, as the case may be.
A commission will be considered earned if, at any time during the 90-day period
following the date of this First Amendment (the "Initial Period"), Owner (but
not any successor in interest to Owner) enters into a lease for vacant space in
the Project with a Manager Contact as set forth below. In addition, a commission
will be considered earned if at any time during the period commencing ninety-one
(91) days and ending one hundred eighty (180) days following the date of this
First Amendment, Owner (but not any successor in interest to Owner) enters into
a lease for vacant space in the Project with a Manager Contact, provided that
(a) the principal terms of such lease have been previously agreed to in writing
by the Owner and Manager Contact prior to the end of the Initial Period, and (b)
the terms of the lease entered into substantially conform to the terms agreed
upon during the Initial Period.
Commissions shall be paid one-half upon execution of a new lease agreement, and
one-half upon occupancy by the Manager Contact. Commissions for expansions of
space and/or renewal terms shall be paid in full upon execution of the
appropriate documentation.
4
<PAGE> 14
ONE FINANCIAL PLAZA
MANAGER CONTACTS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
MANAGER CONTACT ADDRESS DEAL
TYPE
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Inflow 1860 Lincoln Street, Dallas, TX New
- ------------------------------------------------------------------------------------------------------------
Anheuser Busch 701 Market Street, St. Louis, MO New
- ------------------------------------------------------------------------------------------------------------
Evans & Dixon 100 N. Broadway, St. Louis, MO New
- ------------------------------------------------------------------------------------------------------------
Energizer, Inc. Ralston Purina Campus, St. Louis, MO New
- ------------------------------------------------------------------------------------------------------------
SW Bell 1010 Pine Street, S. Louis, MO New
- ------------------------------------------------------------------------------------------------------------
Habanero Computing Solutions, Inc. 3115 S. Grand, St. Louis, MO New
- ------------------------------------------------------------------------------------------------------------
Sandberg, Phoenix, von Gontard, PC 515 N. Sixth St., St. Louis, MO New
- ------------------------------------------------------------------------------------------------------------
Lewis & Rice 500 N. Broadway New
- ------------------------------------------------------------------------------------------------------------
Trilinear Corp 712 N. Second St., St. Louis, MO New
- ------------------------------------------------------------------------------------------------------------
CCMSI 133 S. 11th Street, St. Louis, MO New
- ------------------------------------------------------------------------------------------------------------
White Coleman 500 Washington Ave., St. Louis, MO Renewal
- ------------------------------------------------------------------------------------------------------------
The Witan Company, LLC 500 Washington Ave., St. Louis, MO Renewal
- ------------------------------------------------------------------------------------------------------------
Daniel Henry Insurance 2350 Market Street, St. Louis, MO New
- ------------------------------------------------------------------------------------------------------------
Secure Networks 1008 New Hampshire, Kansas City, MO New
- ------------------------------------------------------------------------------------------------------------
Goldstein & Price 100 N. Broadway, St. Louis, MO New
- ------------------------------------------------------------------------------------------------------------
Peavey Barge 100 N. Broadway, St. Louis, MO New
- ------------------------------------------------------------------------------------------------------------
Michael Fox, Inc. 500 Washington Ave., St. Louis, MO Renewal
- ------------------------------------------------------------------------------------------------------------
Husch & Eppenberger 100 N. Broadway, St. Louis, MO New
- ------------------------------------------------------------------------------------------------------------
</TABLE>
5
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-END> MAR-31-2000
<CASH> 756,833
<SECURITIES> 0
<RECEIVABLES> 465,299
<ALLOWANCES> (28,344)
<INVENTORY> 0
<CURRENT-ASSETS> 902,702
<PP&E> 24,091,624
<DEPRECIATION> (1,830,091)
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0
0
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<TOTAL-LIABILITY-AND-EQUITY> 24,600,974
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<INTEREST-EXPENSE> 163,546
<INCOME-PRETAX> (391,082)
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