29A.08a Form of Brokerage Agreement for Services to LandlordsBROKERAGE AGREEMENT
THIS AGREEMENT ("Agreement") is made as of ______ by and between ______
("Landlord"), a ______ corporation duly constituted and authorized to conduct
business under the laws of the State of New York, having a principal place of
business at ______, New York, New York 10000, and ______ ("Broker"), a ______,
duly constituted and authorized to conduct business under the laws of the State
of New York, having a principal place of business at ______, New York, New York 10000.
WITNESSETH: WHEREAS, Landlord is the owner of the property known as ______, New York,
New York, 10000, (hereinafter referred to as the "Property") and;
WHEREAS, Landlord is seeking to lease current or future vacant or
available office and/or retail space at the Property (such vacant or available
office and/or retail space is hereinafter singly and/or collectively referred to
as the "Available Premises"); and
WHEREAS, Broker warrants and represents that Broker is a real estate
broker duly licensed pursuant to the laws of the State of New York; and
WHEREAS, Landlord desires to employ the services of Broker as its
exclusive rental agent for the leasing of the Available Premises to tenants
which are acceptable to Landlord (hereinafter referred to singly as "Tenant,"
collectively as "Tenants"), in Landlord's sole discretion, and on such terms and
conditions as may be acceptable to Landlord, in Landlord's sole discretion;
NOW, THEREFORE, in consideration of one dollar ($1.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Recitals; Appointment. The above recitals are incorporated herein
and made a part hereof as if fully set forth. The Landlord hereby appoints
Broker as the exclusive rental agent with the exclusive agency right to obtain
Tenants only for the Available Premises and for no other space in the Property
or for any other purpose. The appointment of Broker and Broker's performance
under this Agreement shall exclude, and no commission shall be payable on
account of, the lease, sublease, release, surrender, or other disposition of
takeover space from a proposed Tenant of Available Premises, or the sale,
syndication, net sublease, financing, refinancing, or other disposition of the
fee estate, any ground leasehold and/or any building on the Property, whether or
not such disposition arises as a result of an option or right granted to a
Tenant pursuant to its lease, or otherwise. Broker hereby agrees to perform said
service in accordance with the terms and conditions of this Agreement.
2. Term. The term of this Agreement (the "Term") shall commence on
_____________ (the "Commencement Date") and shall expire at midnight on
_____________ (the "Expiration Date"), unless sooner terminated as hereinafter
provided in Section 8 hereof.
2.1 Renewal Option: The Landlord shall have the two options to
renew this Agreement, each option extending the Term for one additional year,
with each option to be exercised by written notice given at any time during the
Term by Landlord to Broker.3. Landlord's Approval. All terms and conditions of a proposed lease for
the Available Premises (a "Lease") shall be subject to Landlord's sole and
absolute discretion to approve or disapprove. Accordingly, a Lease shall become
effective only when (i) approved by Landlord's Board of Directors, (ii) signed
by an authorized officer of Landlord and by a partner, officer or managing
member of, or other individual duly authorized by Tenant, (iii) delivered by
Landlord to Tenant, and (iv) all conditions precedent to the effectiveness of
the Lease have been satisfied. Nothing contained in this Agreement shall be
construed as granting Broker any right, power or authority to enter into any
Lease or other occupancy agreement in the name of, or on behalf of, Landlord, or
to bind Landlord thereto or hold Landlord obligated or liable thereunder without
Landlord's prior written consent. The Lease shall be executed only by Landlord
and not by Broker.
4. Broker's Commission.
4.1 Payment of Commission.(a) In consideration of Broker's efforts with respect to a
Lease being entered into by and between Landlord and Tenant, Landlord agrees to
pay to Broker, and Broker agrees to accept from Landlord as payment in full in
connection with each such Lease, a leasing commission calculated and payable as
provided in this Section 4 and in accordance with the rates and at the times set
forth in Exhibit A attached hereto and made part hereof, entitled "Schedule of
Commissions." In the event that the Lease is not executed by Landlord and Tenant
for any reason whatsoever, including, but not limited to, any default or act of
omission or commission, arbitrary, intentional, or otherwise, by either of the
intended parties to the Lease, or by reason of any lack with respect to
obtaining or failure to obtain any approval or consent that may be necessary or
required by either of such parties, or by reason of any of the conditions
precedent to any commission being payable hereunder not being fully satisfied,
Broker hereby waives and releases all rights, claims, and demands in law or in
equity for any commission whatsoever in connection with the Lease and all
negotiations relating thereto.
(b) In calculating commissions, the term "fixed rent" shall be
defined in accordance with the definition contained in the Lease between
Landlord and Tenant, and commissions shall be calculated based on the fixed rent
payable on an annual basis, prorated for partial calendar years during the term
of the Lease. In the event that Tenant's Lease contains increases in annual
fixed rent by fixed dollar amount step-ups, then such rent step-ups shall be
included in fixed rent in calculating commissions. For purposes, however, of
calculating commissions payable under this Agreement, the following items shall
be excluded and/or deducted from fixed rent and commissions shall be calculated
and payable net of the following items: (i) all additional rents, percentage
rents, and all other payments and reimbursements by Tenant during the Lease
term, including, without limitation, adjustments in fixed rent calculated upon
increases in the wage or labor costs, cost of living formulae, costs of
maintaining or operating the Property, or any other escalation formula which
increases the fixed rent or additional rent, utility or utility services
supplied, maintenance, cleaning, and waste removal services, real estate taxes
or payments in lieu of taxes, and all other reimbursable expenses, (ii) any
portion of fixed rent which is attributable to the cost of electricity furnished
on a rent-inclusion basis, (iii) reimbursements by Tenant for work, labor or
materials furnished by Landlord, (iv) with respect to extraordinary construction
work, repairs and/or decorating (or other work) which Landlord has agreed to
perform for such Tenant, any amounts (A) undertaken to be paid by Landlord to
such Tenant, or (A) given as an allowance to such Tenant (either by way of a
credit against rent or in a lump sum), (v) any moving costs paid by Landlord or
credited to such Tenant, (vi) any other credits given by Landlord to such Tenant
against rent for any reason, including but not limited to rent concessions,
(vii) payments made by Tenant in connection with any option to cancel contained
in Tenant's Lease, (viii) all costs and expenses assumed or incurred by
Landlord, if any, in connection with Tenant's lease obligations for space rented
by Tenant outside the Property, including, without limitation, expenses incurred
in reletting such space until such time as Landlord is relieved of all of such
lease obligations of Tenant, and (ix) any rent paid or credited by Landlord to
Tenant by reason of Landlord's retaining as subtenant or otherwise retaining any
portion of the Available Premises leased to such Tenant.4.2 Conditions and Time of Payment.
(a) Any commission due Broker shall be deemed earned in full
and shall be payable only upon the satisfaction of all of the following
conditions (the "Conditions"):
(i) (A) a written Lease for the Available Premises in
form satisfactory to Landlord and Landlord's attorneys is unconditionally
executed and delivered by Landlord and Tenant and (B) the security deposit, if
any, and advance rent required to be paid under such Lease at the time of its
execution are paid by Tenant;
(ii) the term of the Lease commences;
(iii) Tenant, under such Lease, enters into possession
of the leased Available Premises;
(iv) in the case of the renewal or extension of the term
of the Lease, the date of commencement of the renewed or extended term has
occurred, and the delivery of any security deposit required to be posted
thereunder has been made; and
(v) in the case of the leasing of additional space by
Tenant, whether or not pursuant to the exercise of an option contained in the
Lease, a lease or lease amendment covering such additional space has been
executed and delivered, and the delivery of any security deposit required to be
posted thereunder has been made, or, if no such lease or lease amendment is
executed, the effective date upon which such additional space becomes part of
the premises demised under the Lease has occurred, and in either case, Tenant
has actually taken possession of such space. If for any reason whatsoever Tenant does not take
possession of the leased Available Premises and commence the payment of rent
(other than deposits of rent called for under the Lease prior to the
commencement of the regular periodic installments of rent), or if for any other
reason whatsoever, including but not limited to acts, omissions, negligence, or
the willful default of Landlord, or its agents, employees, or representatives,
or otherwise, a Lease shall not be entered into between Landlord and a Tenant,
then, in any such event, no commission or brokerage, or any portion thereof,
shall be deemed to be due, payable, or earned, or shall be paid to Broker or any
Outside Broker (as defined in Section 4.6) by Landlord, and Landlord is and
shall be relieved from liability for the payment of any and all commissions,
claims, or charges whatsoever in respect of such transaction. It is expressly
agreed that Landlord shall have the unqualified right, in its sole and absolute
discretion, to refuse to enter into any Lease with a Tenant for any reason
whatsoever without incurring any obligation to Broker or any Outside Broker for
the payment of commissions or otherwise.(b) Any commission payable under this Agreement shall be paid
in three equal installments: (i) the first on the date that the Lease has been
executed by Tenant and has been delivered together with any security deposit or
advance rent that is required to be posted thereunder and Landlord's approval is
given and all other conditions specified in Section 3 of this Agreement have
been fully satisfied, (ii) the second on the date that Tenant takes possession
of the Available Premises pursuant to the provisions of the Lease, and (iii) the
third on the date on which Tenant opens the Available Premises for business
pursuant to the provisions of the Lease (provided, that on each of such dates
(A) each installment of fixed rent then due and payable, if any, has been paid
in full, (B) the Lease is in full force and effect, and (C) Tenant is not in
material default thereunder beyond applicable periods of notice and cure,
otherwise, on the first day of the month following the date on which all such
defaults are cured).
(c) The Landlord may prepay any or all installments of leasing
commissions due Broker at any time and from time to time. Unpaid installments of
leasing commissions shall not bear interest.
4.3 Cancellation Options. Notwithstanding the foregoing, if Tenant's
Lease grants to Tenant any cancellation options, then: (a) if the Lease shall
expressly provide for an option to cancel prior to the commencement of the term,
then the first payment of such commission shall not be payable until the time
for the exercise of such option to cancel shall have expired; (b) if the Lease
shall be cancelled pursuant to an option to cancel prior to the commencement of
the term, no commission shall be due or payable with respect thereto; (c) if the
Lease shall expressly provide for an option to cancel subsequent to the
commencement of the term, then commission shall be payable at the times set
forth above but only for the term of the Lease unaffected by Tenant's option to
cancel; and (d) if Tenant shall have failed to exercise its option to cancel
subsequent to commencement of its Lease within the time period provided, then
commission shall be payable as provided above upon expiration of Tenant's option
to cancel for the then remaining balance of the term as if no such option to
cancel had existed. In each case of (a) through (d) above, no commission shall
be payable unless all of the other conditions of this Section 4.3, Exhibit A,
and this Agreement have been satisfied.
4.4 Renewals and Expansions.(a) Broker will not be entitled to a commission or other
compensation by reason of the extension or renewal of the Lease, or the leasing
of any additional space in the Property by Tenant, except with respect to an
extension or renewal or the leasing of additional space pursuant to the exercise
of a right or option contained in the Lease at the time of its execution, in
which case Broker shall be entitled to a single commission (one and one half
times a single commission in the event an Outside Broker is involved) computed
on the basis of the fixed rent payable during the extended or renewal term or
the term of the Lease for such additional space (exclusive of all exclusions and
deductions specified in Section 4.1(b) hereof) at the rates set forth in Exhibit
A hereto, but (i) in the case of an extension or renewal, at the percentage
level that would have applied if the extended or renewal term were part of the
initial term of the Lease (e.g., if the initial Lease term is for five years and
the extension or renewal term commences immediately thereafter, the percentage
level with respect to the first year of such extended or renewal term will be
calculated by using the commission rate for the sixth year of the Lease term as
specified in Exhibit A), and (ii) in the case of the leasing of additional
space, at the percentage level that would have applied if such additional space
were subject to the Lease at the time of its execution.(b) If Tenant exercises a right or option provided for in the
Lease to renew or extend the term of the Lease or to lease additional space in
the Property, and if the terms of such renewal or extension or lease of
additional space are renegotiated, Broker shall be entitled to a commission
computed as if the renegotiated terms had been those originally provided for in
the Lease; provided, however, that if Broker does not substantially participate
in the renegotiation of the terms of such renewal or extension or lease of
additional space at Landlord's request, the commission payable hereunder shall
not exceed the commission which would have been payable to Broker pursuant to
this Section 4.4 if such terms had not been negotiated.
(c) Notwithstanding anything to the contrary contained herein,
in the event that Landlord and any of Landlord's existing tenants (at the time)
at or in any portion of the Property (the "Landlord's Tenant(s)") enter into a
new lease agreement for all or any portion of space at the Property (the "New
Lease") whereby the New Lease may contain the whole or a portion of Landlord's
Tenant's then-existing space, then Broker's commission payable pursuant to
Section 4.1 shall be reduced proportionately by the percentage equivalent to the
percentage which the portion of Landlord's Tenant's then-existing space bears to
the total space leased under the New Lease.
4.5 Commissions Following Termination of Agreement. Broker
acknowledges that on any Lease executed by Landlord and Tenant and delivered by
Landlord to Tenant within a ninety-day (90) period after the Expiration Date or
earlier termination date of this Agreement, no commission shall be earned by
Broker or be payable by Landlord in accordance with the terms of this Agreement
unless (a) Broker is the procuring cause of such Lease and negotiated on behalf
of Landlord the material terms of such Lease, and (b) Tenant is identified on a
list complying with the requirements of Section 5.2(f) and which Broker delivers
to Landlord in accordance with Section 9.3 within fifteen (15) days after the
Expiration Date or earlier termination date of this Agreement, identifying
prospective Tenants with whom Broker had been negotiating. No commissions shall be deemed earned or payable to Broker under
this Agreement for any: (i) Lease entered into following such ninety (90) day
period, (ii) any Lease entered into at any time after the Expiration Date or
earlier termination date of this Agreement for which Broker was not the
procuring cause and the negotiator of the material terms on behalf of Landlord
or if Tenants were not so identified on the list described in this Section 4.5,
or (iii) any Lease with any Tenant with whom Landlord or any of its directors,
officers, employees, or agents commenced verifiable discussions relating to the
Available Premises prior to the Commencement Date hereof.
4.6 Outside Brokers.
(a) Broker shall have the right to enlist the efforts of other
duly licensed real estate brokers ("Outside Broker(s)") in connection with
Broker's efforts to lease the Available Premises; provided, however, that in
connection with the hiring by Broker of any such Outside Broker and prior to a
Lease being delivered for execution: (i) Broker shall notify Landlord in writing
of each such hiring; and (ii) Broker shall, after each such hiring, obtain a
written agreement from each such outside Broker in the form attached hereto and
made a part hereof as Exhibit B. If any Outside Broker will not accept a
commission computed and payable as aforesaid, Broker will not proceed with the
negotiation of any proposal presented by such Outside Broker unless directed to
do so in writing by Landlord.(b) In the event that any such Outside Broker, hired by Broker
(which is not an affiliate of Broker) shall be the procuring cause of a Lease,
provided Landlord is otherwise obligated to pay Broker a commission with respect
to such Lease under the terms of this Agreement, Landlord shall pay to Broker
one and one half times a full commission (the "Commission Payment") in respect
of such Lease, calculated and payable in accordance with the provisions of this
Agreement, out of which Broker shall (i) pay to such Outside Broker in
connection with such Lease one full commission as such Outside Broker's
compensation (the "Outside Broker's Commission"), and (ii) retain the balance of
the Commission Payment as Broker's compensation. Broker shall pay Outside
Broker's Commission to Outside Broker on or before the date that is five (5)
business days after Broker's receipt of the Commission Payment.
(c) If during the term of this Agreement, Landlord owes any
additional commission by reason of the exercise by Tenant under the Lease
brought about by an Outside Broker of an option or right therein provided for to
renew or extend the term of such Lease or to lease additional space in the
Property, Landlord shall pay the entire additional commission payable pursuant
to Section 4.4 above to Broker and Broker shall divide such commission between
Broker and Outside Broker in accordance with Broker's agreement with Outside Broker.
5. Broker's Obligations: The Landlord's Obligations: Cooperation.5.1 Initiation of Brokerage Assignment. The Landlord shall initiate
a specific leasing assignment for specified Available Premises in a written
notice signed by Landlord's Executive Vice President or his designee which
identifies the Available Premises, authorizes Broker to market such Available
Premises and sets forth the conditions and requirements of the assignment that
Landlord may deem appropriate. The Landlord may terminate or modify such
assignment at any time.
5.2 Broker's Obligations.(a) Broker agrees to use its best efforts to locate a Tenant
for the Available Premises and to assist Landlord in negotiating a Lease with
such Tenant and, in connection therewith, shall take all actions reasonably
necessary to lease the Available Premises with due diligence. These actions
shall include, but shall not be limited to: (i) advising Landlord with respect
to the promotion and advertising of the Available Premises, including the
development and implementation of marketing strategies, (ii) preparing (or
causing to be prepared) promotional materials regarding the Available Premises
(it being understood that Broker shall be identified as exclusive leasing agent
for the Available Premises on all such promotional materials), (iii) undertaking
such other activities as are customary for a leasing agent, including placing of
advertisements in New York City real estate publications, direct mailings to
brokers and potential Tenants in the community, canvassing of needs of potential
Tenants and advertising in trade publications which are subscribed to by target
potential Tenants (provided that all advertisements in publications shall be at
Landlord's direction and, to the extent specified in Section 5.2(c) below, at
Landlord's cost), (iv) cooperating with Outside Brokers who represent
prospective Tenants to obtain Tenants and promptly submitting all offers to
Landlord, (v) obtaining the consent of Landlord with respect to the rental rates
and the terms of all agreements entered into by Broker with Outside Brokers in
connection with the Available Premises, and (vi) aiding Landlord and its
representatives in the negotiation of leases and in the preparation of plans and
specifications and negotiating and executing the Lease and other documents
necessary for the leasing of the Available Premises, including, without
limitation, the preparation of tenant improvement work letters, if any, and
investigation of Tenant's financial conditions. Broker agrees that
______________________________________________ and
_____________________________________________________________________ will be
personally involved in marketing and leasing the Available Premises.(b) Broker agrees to provide Landlord with monthly reports as
agreed regarding leasing programs, and at any time upon the request of Landlord.
Broker shall promptly submit all inquiries, offers, and applications which it
receives for space in the Property to Landlord, setting forth all details with
respect thereto, and shall keep Landlord advised, in writing, promptly, of all
inquiries, applications, and offers which it has received or is soliciting, with
the names and addresses of prospective Tenants involved, and the names and
addresses of any inquiring brokers. Broker shall not execute any Lease on behalf
of Landlord or commit Landlord to make any Lease. Broker shall supply Landlord
with such other reports and information with respect to the leasing program as
Landlord may reasonably request.
(c) Broker shall pay for the costs of (i) Broker's sign at the
Available Premises, if any, (ii) Broker's brokerage flyers, (iii) delivery of
advertising materials, and (iv) any other costs which Broker may incur in
performing its obligations under this Agreement. Broker shall be solely
responsible for all out-of-pocket administrative and overhead expenses incurred
by Broker in connection with the leasing of the Available Premises and the
performance of its obligations hereunder. Unless otherwise agreed to in writing
by the parties, and except as otherwise provided herein with respect to
advertising expenses in publications previously approved by Landlord, Broker
shall not be entitled to receive reimbursement from Landlord for any expense
incurred by Broker whatsoever. The Landlord shall have no obligation to
reimburse Broker for any of Broker's expenses except that Landlord shall
reimburse Broker for the cost of newspaper and periodical advertising up to
$5,000. Such reimbursement shall be due and payable on the date that is thirty
(30) days after Broker delivers to Landlord, in accordance with the provisions
of Section 9.3, an invoice for such advertising, together with any relevant
verifying documentation (including, without limitation, copies of the
advertisement, affidavit of publication and the invoice from the newspaper in
which the advertisement is published). All reimbursements made to Broker
pursuant to this Agreement shall be subject to audit by Landlord and, upon
Landlord's request, Broker shall provide and make available any and all books
and records, receipts and cancelled checks requested by Landlord in connection
with such audit. At Landlord's request, Broker shall use Landlord's classified
advertising agency to place the advertisements referenced in this Section 5.2(c).
(d) Broker also agrees to exercise its reasonable efforts to
secure financial and reference information from prospective Tenants, and a
prepayment of rent and security deposit and other terms as set forth in
Landlord's form lease or as otherwise required by Landlord.
(e) Broker agrees that it shall not accept or maintain any
funds, whether by deposit, escrow, or otherwise, paid by Tenants or prospective
Tenants, and Broker shall direct that all such funds be paid to Landlord.
(f) Broker shall submit monthly (and within fifteen (15) days
after the Expiration Date or sooner termination date of this Agreement) to
Landlord a written list of all prospective Tenants for the Available Premises to
whom Broker represents it has presented the Available Premises or with whom it
conducted active negotiations on specific terms. Such list shall set forth the
date, times, and location of such negotiations, all details with respect to the
subject matter thereof, the proposed Available Premises to be leased, the name
of the person with whom such negotiations were conducted, and the outcome of
such negotiations. Such list shall not contain any names of persons with whom
active negotiations were not conducted within six (6) months prior to the
expiration or earlier termination of this Agreement. If within ninety (90) days
after the Expiration Date or earlier termination date of this Agreement,
Landlord shall lease any space to any Tenant(s) whose name appears on the list
furnished within fifteen (15) days after the Expiration Date or earlier
termination date of this Agreement, Broker shall be entitled to a commission
computed as if this Agreement had not expired or been terminated, except that
Landlord shall not, in any event, pay any commission on account of any Tenant
whose sole procuring cause is Landlord, or with whom Landlord or any of its
directors, officers, employees, or agents commenced verifiable discussions
relating to the Available Premises prior to the Commencement Date hereof.
(g) Notwithstanding anything to the contrary contained herein,
Broker acknowledges that Broker has no authority whatsoever to make any
representations with respect to the Available Premises or the Property or any
improvements thereon and, in this respect, Broker agrees that Broker shall make
no representations with respect to the Available Premises or the Property or any
improvements thereon, nor shall anyone under Broker's control and acting on
behalf of Broker make any such representations so as to bind Landlord or any
Indemnitee (as defined in Section 7) in any way. The Broker shall indemnify,
defend, and hold Landlord and the Indemnitees harmless from all claims,
judgments, costs, and damages (including court costs and reasonable attorneys'
fees), determined by a court of competent jurisdiction to have resulted from its
breach of this Subsection 5.2(g). This provision shall survive the Expiration
Date or earlier termination date of this Agreement.
(h) Broker shall not at any time make any statements or other
communications in or through any media, or respond (other than with a "no
comment" or by referral to Landlord's public relations office) to any media
inquiries regarding any transaction with any Tenant or regarding any Available
Premises or the Property without the prior written consent of Landlord, which
may be withheld or denied in Landlord's sole and absolute discretion. This
provision shall survive the Expiration Date or earlier termination date of this
Agreement.
5.3 Inquiries. The Landlord shall refer to Broker inquiries received
by it from prospective Tenants or brokers with respect to leasing the Available
Premises which are generated by work performed by Broker. Landlord shall not be
obligated to refer to Broker any inquiries received by it from prospective
Tenants whose sole procuring cause is Landlord.
5.4 Cooperation. Each of the parties to this Agreement acknowledges
its obligation to keep the other informed on matters pertaining to leasing the
Available Premises and to cooperate in a fair and reasonable manner so as to
provide for efficient and prudent leasing of the Available Premises.5.5 The Landlord's Right to Negotiate.(a) Nothing in this Agreement shall be deemed to preclude
Landlord from negotiating directly with potential Tenants for the Available
Premises, it being understood, however, that notwithstanding Landlord's
involvement with such leasing or negotiations, (i) if Broker or an Outside
Broker is the procuring cause of Tenant, then Broker shall be entitled to
commission on account of a Lease so negotiated by Landlord as specified pursuant
to the terms of this Agreement, and (ii) no commission or other compensation
shall be payable to Broker for any Tenant for which Landlord is the sole
procuring cause.
(b) Notwithstanding anything to the contrary contained herein,
neither Broker nor any Outside Broker with whom Broker may deal with respect to
the leasing of the Available Premises shall be entitled to any commission for a
Lease to any then-existing tenant of Landlord or any Landlord subsidiary or
affiliate, or to Landlord or to any Landlord subsidiary or affiliate.
6. Compliance with Laws. Broker shall comply with all laws, statutes,
regulations, ordinances, orders, judicial decisions and other governmental
requirements applicable to any activities which Broker performs pursuant to or
relating to this Agreement.
7. Indemnification and Hold Harmless
7.1 To the extent of commissions paid or payable by Landlord, Broker
hereby agrees to and shall hold harmless, indemnify and defend Landlord,
_______________________, as managing agent for the Property (and any future
managing agent for the Property which may be designated by Landlord), and each
of their respective subsidiaries, agents, affiliates, officers, directors,
members, employees, and trustees (singly an "Indemnitee" and collectively the
"Indemnitees") from any and all loss, liability, damages, costs and expenses,
including, without limitation, reasonable attorneys' fees and disbursements
(collectively, "Liabilities"), resulting from claims against Landlord or any
Indemnitees by third parties for payment of brokerage commissions, finder's
fees, or other compensations (i) with respect to any Lease with a Tenant and
negotiations relating thereto, or (ii) where the basis of such claims (whether
or not any other basis for such claims may also be asserted) is alleged to be
dealings between Broker and such third parties.
7.2 Promptly after Landlord receives knowledge or notice of a
Liability, Landlord shall notify Broker of such Liability and the amount thereof
if the amount is definite.
7.3 Broker shall, however, have the right to appropriately dispute
or defend against any Liability provided that:
(a) Broker notifies Landlord of its intention to dispute or
defend against such Liability within ten (10) business days after Broker
receives notice of such Liability in accordance with Section 7.2 by counsel of
its own choosing, provided such counsel is reasonably satisfactory to Landlord;
(b) such dispute or defense shall not subject Landlord to
criminal prosecution;
and
(c) such dispute or defense shall not subject the Property to
lien or sale during the pendency of such dispute or defense (unless such lien is
bonded throughout the pendency of the dispute).
7.4 Broker shall not settle any claim which exceeds Broker's
liability hereunder without Landlord's prior written consent.
7.5 At any time that legal proceedings are instituted against
Landlord or against any Indemnitee or Tenant based upon a Liability, Broker
agrees that Landlord may withhold from further payments of commission due to
Broker until such legal proceeding is finally determined an amount equal to the
maximum extent of Broker's indemnity under this Section 7 with respect to the
subject matter of such legal proceeding. If Broker desires a release of the
amount withheld pursuant to the immediately preceding sentence prior to the date
of final determination of such proceeding, Landlord agrees to pay such withheld
amount to Broker upon the delivery by Broker to Landlord, simultaneously with
such payment, of a confirmed, irrevocable and unconditional letter of credit in
an amount equal to the withheld amount issued by any commercial bank which is a
member of the New York Clearing House as security for the full and faithful
performance by Broker of the obligations of Broker under this Section 7 with
respect to such controversy. Said letter of credit shall specifically provide
that the same can be drawn on by Landlord upon notice and demand to the issuing
bank for any reason whatsoever and shall otherwise be in form and content
reasonably satisfactory to Landlord. The Landlord agrees to return said letter
of credit to Broker following a final determination of the proceedings and the
full satisfaction by Broker with regard to such proceedings of all obligations
of Broker under this Section 7.
8. Termination.
8.1 The Landlord shall have the right to terminate this Agreement
upon five (5) days' written notice if Broker defaults under this Agreement and
fails to cure the default within ten (10) business days after notice of such
default from Landlord.
8.2 In addition to Landlord's rights pursuant to this Section 8,
Landlord reserves the right to terminate this Agreement in whole or in part
prior to the end of the Term by giving five (5) days' prior written notice of
termination to Broker for any of the following reasons:
(a) Landlord's convenience;
(b) Landlord is dissatisfied, for any reason, with the
performance of Broker or its personnel;
(c) Broker applies for or consents to the appointment of or
the taking of possession by a receiver, custodian, trustee, or liquidator of
itself or of all or a substantial part of its property; makes a general
assignment for the benefit of creditors; commences a voluntary case under the
Federal Bankruptcy Code (as now or hereinafter in effect); or fails to contest
in a timely or appropriate manner or acquiesces in writing to any petition filed
against it in an involuntary case under such Bankruptcy Code or any application
for the appointment of a receiver, custodian, trustee, or liquidation of itself
or of all or a substantial part of its property, or its liquidation,
reorganization, or dissolution; or(d) Broker is merged, acquired, or otherwise becomes
affiliated with another business entity or individual(s).
8.3 In the event that all or a part of this Agreement is terminated,
Broker shall immediately, at Landlord's option and request, document in detail
the status of the work in progress and either deliver to Landlord, or dispose
of, such materials in accordance with Landlord's instructions. Such materials
include all Confidential Information, as defined in Section 9.7, and all other
work, software, and documentation in progress in Broker's or any third party's
possession in connection with the Property.
8.4 Broker agrees to cooperate fully with Landlord in its or
another's efforts on Landlord's behalf to provide for an orderly transition of work.
8.5 Broker shall continue to perform any portion of this Agreement
not terminated. Landlord shall have no obligation to Broker with respect to any
terminated portion(s) of this Agreement except as otherwise provided herein.
9. General Provisions.9.1 This Agreement sets forth the entire understanding and fully
embodies the terms and conditions of all the agreements and understandings
between the parties. There are no other agreements, written or oral, between the
parties concerning the proposed leasing of the Available Premises except as
herein stated. All prior agreements, communications or understandings between
the parties relating to the subject matter hereof are merged herein and shall be
of no further force or effect. Any modification, rescission, termination or
extension of this Agreement shall not be valid or enforceable unless it is in
writing and signed by the parties hereto (except for termination or extension by
Landlord pursuant to the provisions hereof). This Agreement shall bind and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns.
9.2 No failure by Landlord to insist upon the strict performance of
any provision contained herein shall constitute a waiver of that provision or of
any breach thereof. If any part or provision of this Agreement shall be deemed
invalid or unenforceable for any reason, such invalidity or unenforceability
shall not affect the validity of the entire Agreement, but such invalid or
unenforceable provision shall be deemed deleted and the remainder of the
Agreement shall remain in full force and effect as if such invalid or
unenforceable provision had never been contained herein.
9.3 All notices under this Agreement shall be in writing and either
hand delivered (and accepted in writing by the recipient) or sent by registered
mail or certified mail, return receipt requested, to the following addresses:
Notice to Landlord:
___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________
With a copy to:
___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________
Notice to Broker:
___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________
9.4 No officer, director, employee, subsidiaries, affiliates,
contractors, agents, or trustees of Landlord shall be personally liable to
Broker under this Agreement.
9.5 Broker represents that it is and will continue for the Term
hereof to be a duly licensed real estate broker in the State of New York and in
compliance with all laws applicable to such license. Broker's New York State
license number is ________________________________________________________.
9.6 Assignment of the rights and obligations of Broker contained in
this Agreement is strictly prohibited and any attempted assignment shall
constitute a default under this Agreement and shall be null and void. An
"assignment" includes the sale of a controlling interest in Broker. Landlord may
assign this Agreement to any party to whom Landlord transfers any of its
interests in the Property.
9.7 Confidentiality(a) In order that Broker can perform under this Agreement,
Landlord may disclose confidential and proprietary information pertaining to
Landlord's past, present and future activities, including, without limitation,
research, development, or business plans, operations, or systems. It is further
recognized that Broker will develop material and information that Landlord will
wish to hold and to be held by Broker as confidential and proprietary
information of Landlord. Accordingly, Broker agrees that with respect to any
oral, written, or computer-generated information supplied by Landlord to Broker
and identified as Confidential or proprietary (hereinafter referred to as
"Confidential Information") at the time of its disclosure:
(i) To use such Confidential Information only in
performance of this Agreement;
(ii) Not to make copies of any such Confidential
Information or any part thereof without the prior written permission of Landlord;
(iii) Not to disclose any such Confidential Information
or any part thereof to others for any purpose without prior written consent of Landlord;
(iv) To limit dissemination of such Confidential
Information to Broker personnel who are directly involved in the performance of
this Agreement, who have a need to know and to use such Confidential Information
for purposes of such performance, and who have been advised of and agree to the
obligations and restrictions on persons receiving such information as set forth
in this Agreement, provided that Broker notifies Landlord in advance of the
names of any personnel having access to such Confidential Information under this
Agreement;(v) To treat such Confidential Information as strictly
confidential and as trade secret information by protecting such information in
the same manner and subject to the same protections as Broker treats and
protects its own respective proprietary information of like importance;
(vi) To disclose such Confidential Information to third
parties only with the prior written consent of Landlord and only after such
third parties have agreed in writing to be bound by the confidentiality and use
restrictions of this Agreement;
(vii) To return such Confidential Information and all
copies thereof to Landlord at the completion of all work under this Agreement or
at such earlier date as Landlord may designate, with a certification by an
officer of Broker that Broker retains no Confidential Information in any form
whatsoever; upon completion of all work or upon receipt of a request by
Landlord, Broker shall also erase or destroy, or cause to be erased or
destroyed, any such Confidential Information in any computer memory or data
storage apparatus, provided, however, that, at Landlord's election, Broker shall
deliver to Landlord the database or data file with full accompanying
documentation identifying the contents thereof, together with the aforementioned
certification by Broker's officer that Broker retains no Confidential
Information in any form whatsoever; and
(viii) To insure that any and all personnel having
access to such Confidential Information terminating employment with or services
for Broker are reminded prior to such termination of their continuing
nondisclosure obligations undertaken pursuant to this or other employee
nondisclosure agreement(s).
(b) It is understood by both parties hereto that unless
specifically required by law, Broker shall not disclose any Confidential
Information without the express prior written agreement of Landlord and under
appropriate nondisclosure terms to be negotiated by the parties in good faith.
(c) For the purpose of protecting Landlord's proprietary
interest in Broker's work under this Agreement, including, without limitation,
any notes, notations, and drafts, Broker shall treat and protect all such work
as Landlord Confidential Information prior to and after delivery of such work to
Landlord in accordance with the terms of this Section 9.7, and shall designate
by appropriate markings all such work as Landlord Confidential Information upon
its generation.
(d) Confidential Information will not be disclosed to any
third party during the term of this Agreement or thereafter except with the
express prior written approval of Landlord or under the following conditions:
(i) It was in Broker's possession free of any obligation
of confidence at the time of Landlord's disclosure thereof to Broker, provided,
however, that Broker immediately informs Landlord in writing to establish
Broker's prior possession; provided further, however, that this subsection shall
not apply to work which, upon its generation by Broker, constitutes Landlord
Confidential Information;
(ii) It is developed by Broker's personnel independently
of and without reference to any Landlord Confidential Information or other
information that Landlord has disclosed in confidence to any third party;
(iii) It is rightfully obtained by Broker from third
parties;
(iv) It is released for disclosure by Landlord with its
written Consent;
(v) It is identified by Landlord as no longer
proprietary; or
(vi) Unless specifically required by law.
9.8 If any action, suit or other proceeding in law or in equity is
brought by either party to this Agreement against the other in connection with
any term or provision in this Agreement, and such action results in the award of
a judgment for money damages or in the granting of any equitable remedy, all
expenses (including reasonable attorneys' fees) of the prevailing party in such
action, suit, or other proceeding shall be paid promptly by the non-prevailing party.
9.9 The persons executing this Agreement on behalf of each party
represent and warrant each to the other party that such person is duly
authorized to bind the party for which execution is made with respect to the
terms and conditions of this Agreement.
9.10 Submission of this Agreement for review and execution shall
convey no rights nor impose any obligations on either party. This Agreement
shall be of no force and effect unless and until both Landlord and Broker shall
have executed it and originals thereof shall have been delivered to the
respective parties hereto.
9.11 Nothing in this Agreement is intended to confirm or grant any
rights to any person other than the parties hereto and their respective
successors and permitted assigns, nor to confer upon anyone the status of a
third-party beneficiary.
9.12 This Agreement shall be construed in accordance with the laws
of the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
LANDLORD:
By: _________________________________________Name: Title: BROKER:
By: __________________________________________ Name: Title:
EXHIBIT A
SCHEDULE OF COMMISSIONS
I. The Landlord shall pay Broker, as, if, and when payable, a leasing commission
calculated as indicated below and in accordance with the within Agreement: (a) For the first year of any Lease term:% of the annual fixed rent or fraction thereof; and
(b) For the second year of any Lease term:
% of the annual fixed rent or fraction thereof; and
(c) For the third year of any Lease term:
% of the annual fixed rent or fraction thereof; and
(d) For the fourth year of any Lease term: % of the annual fixed rent or fraction thereof; and
(e) For the fifth year of any Lease term: % of the annual fixed rent or fraction thereof; and
(f) For the sixth to tenth year(s) of any Lease term: % of the annual fixed rent or fraction thereof; and
(g) For the eleventh to twentieth year(s) of any Lease term:
% of the annual fixed rent or fraction thereof; and
(h) For the twenty-first year and each succeeding year of any
Lease term thereafter:
% of the annual fixed rent or fraction thereof.
All commissions shall be prorated for any partial year. For the purposes of this
Exhibit A, the term of any Lease shall not include any renewal terms, except as
otherwise provided in Section 4.4 of the Agreement. In the event Tenant renews
the term of its Lease, exercises any option, expands the Available Premises, or
relocates whether pursuant to its Lease or otherwise, Broker shall not be
entitled to be paid any commission or other compensation whatsoever, except as
provided in Section 4.4 of the Agreement.
II. If the term of Tenant's Lease upon which commissions are otherwise due and
payable hereunder fails to commence after execution due solely to Tenant's
default, Broker shall refund to Landlord the amount of any commissions paid
hereunder and Broker's commissions shall be limited to the following: ten (10%)
percent of any consideration received by Landlord from the defaulting Tenant
either by forfeiture of security, payment of rent or sums paid in settlement of
claims. Payments shall be due Broker promptly after receipt of such
consideration.
