exv10w35



 






ADVISORY AGREEMENT




          THIS ADVISORY AGREEMENT (the “Agreement”) is made as of March 4, 2004 by
and between COLLIERS TURLEY MARTIN TUCKER, INC. (“Local Broker”) and SECURED
CAPITAL CORP (“SCC”). Local Broker and SCC may be collectively referred to as
the “Parties.”



RECITALS:




          WHEREAS, Local Broker has entered into an Exclusive Listing Agreement
dated March 4, 2004 with EBS BUILDING, L.L.C. (“Owner”), pursuant to which
Local Broker has been retained as the local broker with respect to the sale of
the property known as One Financial Plaza, located at 501 North Broadway, in
St. Louis, Missouri (the “Property”); and



          WHEREAS, Owner desires that Local Broker retain SCC to present the
Property to investors on a national basis, and Local Broker and SCC agree to
enter into such an engagement, 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, Local Broker and SCC
hereby agree as follows:



AGREEMENT:




          1. Duties of Parties. In connection with sale of the Property, the Parties
understand and agree that throughout the process of marketing the Property,
Local Broker will be responsible for performing local marketing activities
within the state of Missouri in order to ensure compliance with applicable
Missouri law. In addition, Local Broker will provide assistance to SCC in
order for it to effectively prepare marketing materials and present the
Property to investors on a national basis outside of Missouri. Without
limiting the forgoing, the respective duties of the Parties shall include,
without limitation, the following:




	(a)	 	Duties of SCC:






	(1)	 	Create a national investor list.
	 
	(2)	 	Develop marketing plan and strategy.
	 
	(3)	 	Prepare marketing materials, including teasers and a marketing
book.
	 
	(4)	 	Distribute marketing materials to non-Missouri investors.
	 
	(5)	 	Make marketing and follow-up calls to non-Missouri investors.
	 
	(6)	 	Respond to non-Missouri investors’ questions.
	 
	(7)	 	Evaluate offers.
	 
	(8)	 	To the extent requested, assist client and its counsel in
negotiations and closing.




 









 












	(b)	 	Duties of Local Broker:






	(1)	 	Prepare and supply relevant local market and
economic data (including market
rental rate data) to assist in SCC’s preparation of financial
and replacement cost
analysis of the Property, as requested by SCC.
	 
	(2)	 	Supply relevant lease and sales figures on comparable
properties.
	 
	(3)	 	Identify and quantify competing properties for sale.
	 
	(4)	 	Distribute marketing materials to Missouri investors.
	 
	(5)	 	Make marketing and follow-up calls to Missouri investors.
	 
	(6)	 	Respond to Missouri investors’ questions.
	 
	(7)	 	Be available to work with photographers, graphic
designers, property managers,
asset managers, etc. to ensure the information contained in the
marketing materials is accurate.
	 
	(8)	 	Conduct property tours.
	 
	(9)	 	Cooperate with SCC and perform such other duties
and activities as deemed
necessary and appropriate to insure the successful marketing of
the Property and
compliance by SCC and Local Broker with applicable Missouri real
estate laws.




Local Broker represents and warrants that all information provided to SCC
hereunder shall be the most current information reasonably available and shall
be, to the best of its knowledge, true, correct and accurate. Notwithstanding
anything to the contrary herein or elsewhere, SCC acknowledges and agrees that
all terms and conditions of an agreement with any prospective purchaser shall
be subject to Owner’s sole and absolute discretion. Owner has the absolute
right in all events to approve or to disapprove any and all proposals
regarding pricing, marketing and terms of sale of the Property. SCC shall have
no authority to extend any offer or make any agreement on behalf of or binding
on Owner, and SCC shall have no authority to accept security or other deposits
in connection with any offer to purchase the Property; accordingly, an
agreement to sell the Property shall become effective only when (i) signed by
an authorized signatory on behalf of Owner and the prospective purchaser and
(ii) delivered by Owner to such prospective purchaser. SCC accepts the
relationship of trust and confidence established between SCC, Local Broker and
Owner under this Agreement. SCC, in coordination with Local Broker, agrees to
take all actions reasonably required or helpful, so long as permitted by
applicable law, in selling the Property as promptly as possible, including,
but not limited to, promoting and marketing the Property, using its diligent
and best efforts, skill, judgment, and abilities to present the
Property,
offering the Property for sale, procuring prospective purchasers for Property,
cooperating with outside brokers representing such prospective purchasers,
obtaining financial and reference information on prospective purchasers,
promptly submitting all offers to purchase the Property to Owner and Local
Broker, arranging for photographs of the Property, and other actions as may be
directed by Owner from time to time including, but not limited to, as a when
requested by Owner, using best efforts to assist Owner with obtaining tenant
estoppel certificates and subordinations.



2. Fee. Local Broker agrees to pay (or cause Owner to pay through escrow) SCC
a fee equal to 80% of the gross commission paid by Owner to Local Broker under the
Listing Agreement
(including any post termination commission paid thereunder). Such fee shall be
due and payable out
of escrow concurrent with the closing of the sale of the Property. Local
Broker has advised SCC
that the fee payable under the Listing Agreement is as reflected on Exhibit A
attached hereto.



3. Expenses. Local Broker has arranged for Owner to reimburse SCC directly
for its




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reasonable third party marketing expenses in an amount not to exceed $40,000.
The marketing expenses shall include reasonable travel costs associated with
SCC’s services and the cost of producing and distributing descriptive marketing
materials (including printing expenses and the costs of procuring and
reproducing photographs, maps, renderings, plot plans and blueprints) and shall
be paid whether or not a transaction involving the Property occurs. Local
Broker has authorized SCC to periodically invoice Owner for reimbursement of
expenses that are incurred and any amounts paid by Owner to SCC shall reduce
the reimbursement obligations of Owner on a dollar for dollar basis. Should
Local Broker reasonably incur any of the expenses set forth above, so long as
SCC provides prior written approval of the expenses, SCC will reimburse Local
Broker.



4. Third-Party
Beneficiary. The brokerage duties required for the sale of the
Property
shall be performed only by qualified brokers, agents and other professionals
duly licensed, to the
extent required by applicable law. Local Broker and SCC acknowledge and agree
that the Owner is
an expressly intended third-party beneficiary of this Agreement for the
performance of the duties
required hereunder and SCC expressly acknowledges such through
the execution of an
acknowledgment in the form attached hereto as Exhibit B. SCC agrees that it
shall be directly
responsible to the Owner for the quality and coordination of all services
provided by SCC.



5. Indemnification. SCC shall indemnify, defend (with counsel reasonably
acceptable to
Local Broker) and hold Local Broker harmless from and against any and all
claims, controversies,
actions, liability, fines, penalties, damages or judgments relating to or
arising from SCC’s material breach
of this Agreement. Local Broker shall indemnify, defend (with counsel
reasonably acceptable to SCC)
and hold SCC harmless from and against any and all claims, controversies,
actions, liability, fines,
penalties, damages or judgments relating to or arising from Local Broker’s
material breach of this
Agreement. Local Broker agrees that SCC shall be a beneficiary of the
indemnity set forth in Section 9
of the Listing Agreement.



6. Representations. The Parties agree that SCC’s services under this
Agreement are
financial advisory services to Local Broker in connection with the contemplated
sale of the Property.
SCC represents and warrants to Local Broker that (i) SCC is entering into this
Agreement in reliance
upon the provisions of RSMo. Section 339.150; (ii) to the best of SCC’s
knowledge and belief, after due
inquiry, SCC and all of its agents performing services under it may perform
such services in compliance
with applicable laws without obtaining licenses from the Missouri Real Estate
Commission; and (iii) SCC
will use commercially reasonable efforts to comply with all applicable laws in
the performance of its services hereunder.



7. Governing Law. This Agreement (i) shall be performed by SCC outside of the
State of Missouri, (ii) shall be construed and enforced according to and governed by
the laws of the State
of New York, without regard to principles of conflicts of law. The Parties
hereby consent to the
subject matter and personal jurisdiction of the Federal and State courts of the
State of Missouri for
all actions arising out of or in connection with the performance or enforcement
of this Agreement.
The provisions of this paragraph shall survive the termination or expiration of
this Agreement.



8. Attorneys’ 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
reasonable attorneys’ fees and costs incurred.



9. Modifications. This Agreement may not be amended, modified or changed, nor




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shall any waiver of any provisions hereof be effective, except only by an
instrument in writing and signed by the Owner and the party against whom
enforcement of any waiver, amendment, change, modification or discharge is
sought.



10. Entire Agreement. This Agreement constitutes the entire agreement between
Local Broker and SCC and supercedes all prior discussions, negotiations and
agreements, whether oral or
written. In the event of any conflict between the terms of the Listing
Agreement and this
Agreement, the terms of the Listing Agreement shall govern.



11. Term; Survival. This Agreement shall be co-terminus with the Listing
Agreement; provided, however, that the provisions of Sections 2, 3, 4, 5, 6 and 7 shall
survive termination or expiration of this Agreement.




[The remainder of this page is intentionally left blank]




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          IN WITNESS WHEREOF, the parties hereto have duly entered into
this Agreement as of the day and year first above written.



	 	 	 	 	 
	COLLIERS TURLEY MARTIN TUCKER, INC.	 	 
	 
	 	 	 	 
	By:
	 	/s/ David Thiemann	 	 
	

	 	
 	 	 
	Name:
	 	David Thiemann	 	 
	Title:
	 	Managing Principal	 	 
	 
	 	 	 	 
	SECURED CAPITAL CORP	 	 
	 
	 	 	 	 
	By:

	 	/s/ Michael D. Cochran	 	 
	

	 	
 	 	 
	

	 	Michael D. Cochran, Principal	 	 







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EXHIBIT A




Fee for Sale of Property





	 	 	The commission payable under the Listing Agreement will be paid 20% to
Colliers Turley Martin Tucker, Inc. and 80% to Secured Capital Corp and
shall be computed based on the “Net Sale Price” received by Owner in
accordance with the following (for purposes of this Agreement, the term
“Net Sale Price” shall mean the Gross Sale Price received by Owner, less an
allowance provided to the buyer for roof repairs or replacement):





	 	 	 
	Net Sale Price Received by Owner	 	Commission
	 
	A. Up to and including $34 million

	 	1.25% of Net Sale Price
	 
	B. In excess of $34 million, up to including $37 million

	 	$425,000 plus 5% of Net Sale Price in excess of $34 million
	 
	C. In excess of $37 million

	 	$575,000 plus 7% of Net Sale Price in excess of $37 million







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EXHIBIT B




ACKNOWLEDGMENT




          This Acknowledgment is executed this 4th day of March, 2004 by Secured
Capital Corp. (“SCC”), acting as financial advisor retained by Colliers Turley
Martin Tucker, Inc. (“Broker”) to perform certain services as described in the
Advisory Agreement (the “Agreement”) between Broker and SCC dated as of the
date hereof in connection with the sale of the building presently known as One
Financial Plaza, with an address of 501 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”) presently owned by EBS Building, L.L.C. (“Owner”). In
consideration of the contract between Broker and SCC, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, SCC agrees as follows:



     1. SCC acknowledges that the Property is owned by Owner and that Owner has
entered into a
contract with Broker to act as the broker in connection with the sale of
the Property (the “Listing
Agreement”), which calls for, among other things, the payment of a fee to
Broker, 80% of which is to be paid
to SCC and 20% of which is to be retained by Broker.



     2. SCC further acknowledges that its Agreement with Broker is entered into
pursuant to the
Listing Agreement and for the ultimate benefit of Owner. In addition,
SCC acknowledges and agrees that
pursuant to the Agreement, it is responsible for the following aspects of
the Project: (i) create a national
investor list; (ii) develop marketing plan and strategy; (iii) prepare
marketing materials, including teasers and a
marketing book; (iv) distribute marketing materials to non-Missouri
investors; (v) make marketing and follow-
up calls to non-Missouri investors; (vi) respond to non-Missouri
investors’ questions; (vii) evaluate offers; and
(viii) to the extent requested, assist client and its counsel in
negotiations and closing. SCC agrees to perform
all such aspects in accordance with all applicable codes, ordinances and
laws, and with the requirements and
concepts established pursuant to the Listing Agreement.



     3. SCC hereby acknowledges and agrees that Owner is an expressly intended
third-party
beneficiary of the Agreement. SCC agrees that Owner’s status as intended
third-party beneficiary does not
constitute or create a contractual relationship between Owner and SCC and
does not allow SCC to enforce
the Agreement directly against Owner. However, SCC agrees that as an
intended third-party beneficiary,
Owner shall have the right to enforce the terms of the Agreement directly
against SCC, without accepting any
assignment of the Agreement, and that in such event Owner shall be
entitled to full and direct performance of the Agreement from SCC.



     Specifically in this regard, SCC acknowledges and agrees that it shall be
directly and fully liable and responsible to Owner for the quality and
coordination of all services provided by SCC related to the sale of the
Property and for all defects or deficiencies in performance of its services as
described in the Agreement. In addition, SCC hereby agrees that all indemnities
and insurance coverages procured by SCC under the Agreement shall include and
run to the benefit of Owner and its agents, employees, officers and servants.



	 	 	 	 	 
	

	 	SECURED CAPITAL CORP
	 	 
	 
	 	 	 	 
	By:

	 	/s/ Michael D. Cochran	 	 
	

	 	
 	 	 
	Name:

	 	Michael D. Cochran	 	 
	Title:

	 	Principal	 	 







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EXHIBIT B




ACKNOWLEDGMENT



          This Acknowledgment is executed this 4th day of March, 2004 by Secured
Capital Corp. (“SCC”), acting as financial advisor retained by Colliers Turley
Martin Tucker, Inc. (“Broker”) to perform certain services as described in the
Advisory Agreement (the “Agreement”) between Broker and SCC dated as of the
date hereof in connection with the sale of the building presently known as One
Financial Plaza, with an address of 501 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”) presently owned by EBS Building, L.L.C. (“Owner”). In
consideration of the contract between Broker and SCC, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, SCC agrees as follows:



     1. SCC acknowledges that the Property is owned by Owner and that Owner has
entered into a
contract with Broker to act as the broker in connection with the sale of
the Property (the “Listing
Agreement”), which calls for, among other things, the payment of a fee to
Broker, 80% of which is to be paid
to SCC and 20% of which is to be retained by Broker.



     2. SCC further acknowledges that its Agreement with Broker is entered into
pursuant to the
Listing Agreement and for the ultimate benefit of Owner. In addition,
SCC acknowledges and agrees that
pursuant to the Agreement, it is responsible for the following aspects of
the Project; (i) create a national
investor list; (ii) develop marketing plan and strategy; (iii) prepare
marketing materials, including teasers and a
marketing book; (iv) distribute marketing materials to non-Missouri
investors; (v) make marketing and follow-up calls to non-Missouri investors; (vi) respond to non-Missouri
investors’ questions; (vii) evaluate offers; and
(viii) to the extent requested, assist client and its counsel in
negotiations and closing. SCC agrees to perform
all such aspects in accordance with all applicable codes, ordinances and
laws, and with the requirements and
concepts established pursuant to the Listing Agreement.



     3. SCC hereby acknowledges and agrees that Owner is an expressly intended
third-party
beneficiary of the Agreement. SCC agrees that Owner’s status as intended
third-party beneficiary does not
constitute or create a contractual relationship between Owner and SCC and
does not allow SCC to enforce
the Agreement directly against Owner. However, SCC agrees that as an
intended third-party beneficiary,
Owner shall have the right to enforce the terms of the Agreement directly
against SCC, without accepting any
assignment of the Agreement, and that in such event Owner shall be
entitled to full and direct performance of the Agreement from SCC.



     Specifically in this regard, SCC acknowledges and agrees that it shall be
directly and fully liable and responsible to Owner for the quality and
coordination of all services provided by SCC related to the sale of the
Property and for all defects or deficiencies in performance of its services as
described in the Agreement. In addition, SCC hereby agrees that all indemnities
and insurance coverages procured by SCC under the Agreement shall include and
run to the benefit of Owner and its agents, employees, officers and servants.



	 	 	 	 	 
	

	 	SECURED CAPITAL CORP
	 	 
	 
	 	 	 	 
	By:

	 	/s/ Michael D. Cochran	 	 
	

	 	
 	 	 
	Name:

	 	Michael D. Cochran	 	 
	Title:

	 	Principal	 	 







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