Exhibit 10.1


CONSULTING AGREEMENT


 


CONSULTING AGREEMENT (“Agreement”), dated as of May 6,
2005 but effective as of May 1, 2005, by and between New Plan Excel Realty
Trust, Inc., a Maryland corporation (“Company”), and Scott MacDonald (“Consultant”).


 


RECITALS


 


Company and Consultant desire to enter into this
Agreement to memorialize their mutual understanding with respect to Consultant performing
certain services for the Company with respect to the Company’s Valley Fair Mall
property (the “Property”).


 


AGREEMENT


 


IN CONSIDERATION of the premises and the mutual
covenants set forth below, the parties hereby agree as follows:


 


1.               Consulting
Period.  The term (the “Term”) of
this Agreement shall commence as of May 1, 2005 and continue until April 30,
2007, unless sooner terminated by either Company or Consultant as provided in Section 7
hereof.


 


2.               Consulting
Services.  During the term,
Consultant shall work with Company employees to develop a proposed
redevelopment plan(s) for the Property, including site plan, financial
pro-formas and budgets.  The Company will
review the redevelopment plan(s) and work with Consultant on refining the redevelopment
plan(s).  The Company shall have the sole
right to modify and approve any redevelopment plan for the Property (any redevelopment
plan approved by the Company being referred to herein as the “Approved
Redevelopment Plan”).  In connection with
the approval of the Approved Redevelopment Plan, the Company and Consultant
will agree upon milestone events relative to the redevelopment of the Property
pursuant to the Approved Redevelopment Plan (each, an “Agreed Upon Milestone
Event”).  In addition, the Company and
Consultant shall attribute a percentage to each Agreed Upon Milestone Event
(the “Milestone Percentage”).


 


Once an Approved Redevelopment Plan exists, Consultant
will perform such work as is necessary to implement the Approved Redevelopment
Plan, including, without limitation, negotiating with anchor and other tenants,
negotiating the terms of land sales and leases, meeting and negotiating with
city and other governmental agencies, and negotiating tenant buy-outs (the
foregoing, including the creation of the redevelopment plan(s), being referred
to as the “Consulting Services”).  To the
extent that Consultant requires the assistance of legal counsel in connection
with the implementation of the Approved Redevelopment Plan, Consultant shall
consult with the Company and the Company shall provide internal or retain
outside legal counsel to assist Consultant.


 





















 


Consultant shall devote such time and energy to the
Consulting Services as is reasonably necessary in order for Consultant to
effectively provide the Consulting Services to Company.  In connection with the performance of the Consulting
Services, Consultant shall regularly meet and update the Company regarding the
status of the Consulting Services and the Approved Redevelopment Plan.  Consultant shall work with Company employees
in connection with the implementation of the Approved Redevelopment Plan. Consultant
shall not take any action binding upon the Company regarding the Approved
Redevelopment Plan or the Property without the prior consent of the Company,
and under no circumstances shall Consultant have the authority to execute any
agreement or other document on behalf of the Company.  During the Term, Consultant will attend the
ICSC convention in Las Vegas and present the Property and the Approved
Redevelopment Plan (or potential redevelopment plans if there is not yet an
Approved Redevelopment Plan) and conduct meetings regarding the same at the
Company’s booth (the “ICSC Event”).


 


3.               Consulting Fee.  The Company shall pay Consultant a monthly
fee equal to $12,000 per month, commencing on May 1, 2005 (the “Consulting
Payments”).  To the extent that during
any month there is reduced activity, then the Company and Consultant shall agree
upon a reduced Consulting Payment for such month.  Except for the Success Fee or the Implied
Success Fee (to the extent payable as provided in Section 4 below) and the
Expense Reimbursement (as provided in Section 5 below), the Consulting
Payments shall be the sole compensation payable by the Company to Consultant in
connection with the Consulting Services and Consultant shall not be entitled to
receive any other fees, commissions, payments or other compensation therefore.


 


4.               Success Fee.  Upon redevelopment of the Property in
accordance with the Approved Redevelopment Plan, Consultant shall be entitled
to a success fee (“Success Fee”) in an amount equal to 10% of the “value” of the
Property in excess of the Cost Basis. 
For purposes hereof, Cost Basis shall be an amount equal to (x) the book
value of the Property as of May 1, 2005 and (y) all costs incurred by the
Company in connection with the implementation of the Approved Redevelopment
Plan (including the Consulting Payments and the Expense Reimbursement), net of
proceeds from land sales.


 


The Success Fee shall be paid upon the sale of the
Property, and in such event the “value” of the Property shall be the gross
purchase price paid for Property (excluding land sales the proceeds of which
reduced the cost of the redevelopment of the Property).  In the event that the Property is not sold
within one year following substantial completion of the Approved Redevelopment
Plan, then the Success Fee shall be determined by an independent appraisal of
the Property, and following such value determination, Consultant shall be paid
the Success Fee.  In the event that no
Approved Redevelopment Plan is agreed upon by the Company during the term of
this Agreement, or in the event that prior to the Company approving an Approved
Redevelopment Plan the Company enters into a joint venture relationship with a
third party regarding the redevelopment of the Property, then no Success Fee
shall be due or payable to Consultant.


 


In the event that an Approved Redevelopment Plan is
agreed upon by the Company, but this


 


2





















 


Agreement is terminated by the Company prior to the
sale of the Property or the one year anniversary of substantial completion of
the Approved Redevelopment Plan, then Consultant shall be entitled to the
payment of a partial Success Fee as follows. 
At the time this Agreement is terminated, an implied value of the
Property shall be determined by taking the NOI of the Property upon substantial
completion as projected in the Approved Redevelopment Plan (the “Completed NOI”),
dividing the Completed NOI by the market cap rate at the time of termination
(that being the cap rate that the Property would sell for at such time as if
the Property were substantially complete in accordance with the Approved
Redevelopment Plan) and taking the excess of such value over the Cost Basis (as
projected by the Approved Redevelopment Plan) (the “Implied Success Fee Value”).  The Implied Success Fee Value would then be
multiplied by the aggregate Milestone Percentages based on the occurrence of
the Agreed Upon Milestone Events that have occurred.  In no event shall a Success Fee or an Implied
Success Fee be payable if the Company has not agreed upon an Approved
Redevelopment Plan.


 


The first $100,000 of the Success Fee or Implied
Success Fee shall be paid in cash to Consultant, and the remainder of the
Success Fee or Implied Success Fee shall be paid by the Company to scholarship
funds designated by the Consultant.  No
Success Fee or Implied Success Fee shall be paid to the Consultant in the event
that the Consultant terminates this Agreement.


 


5.               Expenses.  The Company agrees to reimburse Consultant
for all reasonable out of pocket costs and expenses incurred by Consultant and pre-approved
by the Company during the Term in furtherance of and as necessary in connection
with the performance of the Consulting Services.  In connection with the performance of the
Consulting Services, Consultant shall have the right to use the Company’s
offices in Houston, Texas, San Diego, California or Salt Lake City, Utah.  The costs incurred by Consultant in attending
the ICSC Event would be reimbursed by the Company.  All of the foregoing being referred to as the
Expense Reimbursement.  The Company shall
designate a representative to be responsible for the pre-approval of expenses
and otherwise to act as the primary contact between the Company and Consultant.


 


6.               Confidential Information. 
Consultant shall hold in a fiduciary capacity for the benefit of the
Company all trade secrets and confidential information, knowledge or data
relating to the Company and its affiliates and their respective businesses and
investments which shall have been obtained by Consultant during the Term and
which is not generally available public knowledge (other than by acts of
Consultant in violation of this Agreement). 
Except as may be required or appropriate in connection with its carrying
out of its duties under this Agreement, Consultant shall not, without the prior
written consent of the Company or as may otherwise be required by law or any
legal process, communicate or divulge any such trade secrets, information,
knowledge or data to anyone other than the Company and those designated by the
Company or on behalf of the Company in the furtherance of its business or to
perform duties hereunder.


 


7.               Termination. 
Either party to this Agreement shall have the right to terminate this
Agreement effective as of the end of any calendar month upon not less than
thirty (30) days prior written notice to the other party (the date of
termination being referred to as the “Termination Date”).


 


3





















 


Upon such termination,
the Company shall have no further obligations to Consultant except (i) for
the payment of any Consulting Payments not previously paid during the term, (ii) any
costs and expenses incurred prior to the Termination Payment for which the
Company is obligated to reimburse Consultant as provided in Section 5
above and (iii) the Success Fee or the Implied Success Fee, to the extent
payable pursuant to Section 4.


 


8.               Independent Contractor.  Consultant
shall act and be an independent contractor with respect to the Company and no other
relationship is intended to be created between the parties hereto.  Without limitation of the foregoing,
Consultant shall not be an employee of the Company during the Term, shall not
be entitled to any benefits of an employee of the Company, and this Agreement
shall not constitute an employment contract. 
Nothing in this Agreement shall be construed as (i) giving
Consultant any rights as an employee or officer of the Company or any of its
affiliates or (ii) entitling Consultant to control in any manner the
conduct of the business of the Company or any of its affiliates.


 


Except to the extent otherwise expressly provided in
this Agreement, the Company shall not have control over the details and means
used by Consultant in performing the Consulting Services, but shall have
control over the results thereof.  For
greater certainty, (i) the Consulting Services shall be of high quality
and (ii) the Company may provide specifications, descriptions, goals and
interim and final deadlines with respect to the Consulting Services (and
require that these be followed).


 


Consultant shall file all tax returns and reports
required to be filed by Consultant on the basis that the Consultant is an
independent contractor, and not an employee of the Company.  Consultant shall timely pay in full all taxes
in connection with Consultant’s engagement and remuneration under this
Agreement, including federal, state and local income taxes and social security
(FICA) taxes, as applicable.  The Company
shall not pay any unemployment or workers’ compensation taxes or premiums on
behalf of or regarding Consultant.


 


Consultant shall be solely responsible for Consultant’s
medical, dental, health and life insurance and other benefits and the Company
shall have no obligation to provide any of such benefits to Consultant (except
to the extent of offering Consultant COBRA as required by law). Without
limitation of the foregoing, Consultant shall not be eligible for any benefits
or fringe benefits offered by the Company to its employees (excepting COBRA as
required by law).


 


9.               Successors.


 


(a)   Company’s Successors.  No rights or obligations of the Company under
this Agreement may be assigned or transferred unless the Company requires any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place, in which event the Company may so assign
this agreement, except Consultant may assign to a company wholly owned by
Consultant.


 


4





















 


(b)   Consultants Successors.  No rights or obligations of Consultant under
the Agreement may be assigned or transferred by Consultant.


 


10.       Notice.  For the
purposes of this Agreement, notices, demands and all other communications
provided for in this Agreement shall be in writing and shall be deemed to have
been duly given when delivered either personally or by United States certified
or registered mail, return receipt requested, postage prepaid, addressed as
follows:


 


If to Consultant:


 


Scott MacDonald


1004 Memorial Village Drive


Houston, Texas 77024-4412


 


If to the Company:


 


New Plan Excel Realty Trust, Inc.


420 Lexington Avenue


New York, New York 
10170


Attn:  General
Counsel


 


or to such other address as any party may have
furnished to the other in writing in accordance herewith, except that notices
of change of address shall be effective only upon receipt.


 


11.       Miscellaneous. 
No provisions of this Agreement may be amended, modified, or waived
unless such amendment or modification is agreed to in writing signed by a duly
authorized officer of both Company and Consultant, and such waiver is set forth
in writing and signed by the party to be charged.  No waiver by either party hereto at any time
of any breach by the other party hereto of any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.  The validity,
interpretation, construction and performance of this Agreement shall be
governed by the laws of the State of New York without regard to its conflicts
of law principles.


 


12.      Validity.  The
invalidity or unenforceability of any provision or provisions of this Agreement
shall not affect the validity or enforceability of any other provision of the
Agreement, which shall remain in full force and effect.


 


13.      Counterparts. 
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and the same instrument.


 


14.      Entire Agreement. 
Except as otherwise expressly provided herein, this Agreement sets forth
the entire agreement of the parties hereto in respect of the subject matter
contained herein and


 


5





















 


supersedes all
prior agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer,
employee or representative of any party hereto in respect of such subject
matter.  Any prior agreement of the
parties hereto in respect of the subject matter contained herein is hereby
terminated and canceled with no rights or claim to any payment or benefits
thereunder.


 


6





















 


IN WITNESS WHEREOF, the parties hereto have executed
this Agreement on the date first above written.


 


	
   

  	
  NEW PLAN EXCEL REALTY TRUST, INC.,

  
	
   

  	
  a Maryland corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven F.
  Siegel

  	
   

  
	
   

  	
  Name:

  	
  Steven F. Siegel

  	
   

  
	
   

  	
  Title:

  	
  Executive Vice
  President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Scott MacDonald

  	
   

  
	
   

  	
  SCOTT MACDONALD

  
						



 


7