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29A.09[2] Form of Brokerage Agreement for Services to TenantEXCLUSIVE BROKERAGE AGREEMENT This Exclusive Brokerage Agreement ("Agreement") is made as of ______, 2002 by and between [NAME OF TENANT], a New York Corporation, having offices at ______ Street, New York, New York 10000 ("Client"), and [NAME OF BROKER], a New York corporation, having offices at ______ Avenue, New York, New York 10000 ("Broker"). W-I-T-N-E-S-S-E-T-H WHEREAS, Client wishes to obtain an office premises, an office building, or an interest in an office building consisting of approximately __________ square feet, with particulars and amenities as advised to Broker by Client (the "Office Property"), in an orderly, prompt and prudent manner through a search effort that will meet Client's requirements in the current marketplace; NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. For a period commencing on the date of this Agreement ("Retention Date") and expiring on ______, 2002 ("Retention Period") Broker is hereby hired by Client, and Broker accepts such hiring, undertakes to perform the services of obtaining a suitable Office Property as described in this Agreement, and is given the exclusive right to assist Client in locating, selecting, negotiating for and closing a transaction for the Office Property by lease, ground lease, assignment, or purchase. Client hereby agrees to work solely with and through Broker for such acquisition during the Retention Period. Except as otherwise provided herein, Client agrees to refer to Broker all inquiries, proposals and offers relating to the acquisition of Office Property, including, but not limited to, those from brokers, lessees, lessors and owners. All negotiations will be conducted by Broker or with Broker's participation, subject to Client's counsel's advice and direction of and subject to Client's review and final approval, which, at Client's sole and absolute discretion, may be withheld, amended, or withdrawn for any or no reason. It is hereby acknowledged by the parties that Broker as Client's exclusive broker is acting as an independent contractor and shall have no authority to bind or otherwise obligate Client to third parties. Broker recognizes that while acting as Client's exclusive broker, Broker shall have no right, and is hereby expressly not authorized, to act on behalf of or in any way to bind Client's existing subtenants or licensees pursuant to the terms of this Agreement. 2. Broker hereby warrants and represents that it is a real estate broker duly licensed as such by the State of New York and is thereby authorized to transact brokerage business in that state. Broker's duties as exclusive broker pursuant to the terms and during the term hereof will comply with the laws of the State of New York and will cover every aspect of the Office Property acquisition process, including, but not limited to (1) locating available space suitable to Client's needs, (2) using Broker's best efforts to provide details on all Office Property available through lease, ground lease, assignment, or purchase that could fulfill Client's requirements as to location, size, quality and other factors, (3) assisting in grading or prioritizing in selection of Office Property for further consideration, (4) suggesting and conducting comparative studies and making other recommendations as to space selected for final review, and (5) assisting in all aspects of lease, ground lease, assignment, or purchase negotiations for space ultimately selected. 3. Broker hereby warrants and represents to Client that it shall provide brokerage services and comply with its duties of reasonable care, individual loyalty, confidentiality, full disclosure and duty to account to Client in its capacity as independent contractor and exclusive broker in connection with this Agreement and the services described in this Agreement. In the event that Broker is terminated for breach of its fiduciary duties to Client, Broker agrees to give and by this Agreement shall be deemed to have given to Client a general release exonerating Client from further obligations under the terms hereof. Such Broker's general release obligation shall survive the termination of this Agreement. 4. Client shall have the right to terminate this Agreement at any time, upon thirty (30) days prior written notice to Broker. 5. Within thirty (30) days after the termination or expiration of this Agreement, Broker shall deliver to Client and both parties shall agree upon a list of prospective locations that have been submitted to Client by Broker during the term of this Agreement. In the event Client consummates a lease, ground lease, assignment, or purchase transaction at one of those listed locations within ninety (90) days after termination (or in the event active negotiation is occurring with respect to such space at the time of termination, within one hundred twenty (120) days after termination) and Broker was the procuring cause of such transaction (or would have been but for being prevented from assisting in closing such transaction by Client's actions) Client agrees to recognize Broker as continuing to be Client's exclusive broker in such transaction in accordance with the terms and conditions hereof; provided, however, Broker shall not be deemed the procuring cause in the event of termination for cause. 6. Client shall have the right in its sole and absolute discretion, without any liability with respect to commission, to determine whether or not to enter into, proceed with, or consummate any proposed transaction at any time. It is understood that any offers that Broker presents are subject to the required approval by the appropriate officers or committees of Client, and that such offers will not be deemed to have been accepted until a satisfactory contract, lease, or other appropriate agreement has been fully executed and delivered. 7. Notwithstanding anything contained herein to the contrary, Client reserves to itself and shall have the right to negotiate and enter into agreements and/or acquisition of Office Property or space with or from Client's current landlords existing as of the date hereof ("Client's Landlords"), without liability for any commission or any other liability or obligation to Broker, and in this regard Broker acknowledges, covenants, and agrees that Broker shall have no right to contact, and shall not contact or have any discussions with any of Client's Landlords in connection with, relating to, or arising out of the transactions contemplated under this Agreement, and that if Client concludes any final agreements and obtains any Office Property or any space from any of Client's Landlords (including, without limitation, renegotiation or restructuring of any of Client's existing leases or related agreements), then no commission whatsoever shall be due to Broker and Client shall have no liability or obligation to Broker whatsoever. 8. Broker shall receive its compensation from the owner or lessor of the space that is leased, ground leased, assigned, or purchased. Broker hereby covenants to grant to Client a reasonable opportunity to review any proposed commission agreement between Broker and the owner or lessor of the space selected, in order to participate in the drafting and revision of any term that may affect Client's interest, and to obtain Client's prior written consent to the portion of the commission agreement that affects Client's interest before it is executed by Broker. Client shall not unreasonably withhold its consent to Broker's undertaking of such agreement and will in no way interfere with the matters contained therein that do not pertain directly to or affect Client's interest thereunder, or delay the execution thereof. In no event shall Client negotiate or communicate with the owner or lessor or their respective agents directly in connection with any such commission agreement. Notwithstanding the foregoing, and except as otherwise provided herein, if Client enters into a fully-executed transaction for Office Property or space in breach of Broker's exclusive brokerage rights as set forth herein, and causes the loss of a commission payment to Broker as contemplated hereunder, then, as Broker's exclusive remedy and liquidated damages hereunder, Client shall pay to Broker one (1) full commission payment based on the application to the terms of the transaction entered into by Client of the "Default Commission Rates" set forth on Exhibit A attached to and made part hereof, which Broker represents are Broker's prevailing and usual commission rates as of the date of this Agreement. 9. Broker agrees, warrants, and represents that any cobrokers, sub-brokers or other real estate agents that may be retained or employed by Broker shall be solely responsible to and be the sole responsibility of Broker, including, without limitation, for the payment of any commission or portion thereof, and Client shall have no privity of contract with or be responsible to or for the acts of, or commissions or portions thereof payable to, any such cobroker, sub- broker or real estate agents pursuant to the terms of this Agreement. This provision shall be included in all cobrokerage agreements between Broker, or any constituent entity or affiliate of Broker, and participating cobrokers, sub- brokers or other real estate agents, for the benefit of Client. 10. Broker hereby indemnifies and agrees to defend and hold Client harmless from and against any and all liabilities, loss, claims or damages and expenses, including, without limitation, court costs and reasonable attorneys' fees and disbursements incurred by Client due to any act or negligence of Broker or its agents or resulting from the breach or alleged breach of any representation herein contained by Broker, including, without limitation, claims for brokerage commissions or other compensation arising out of or in connection with this hiring together with any fees or expenses, including, without limitation, reasonable attorneys' fees and disbursements reasonably incurred by Client in order to establish Broker's indemnity obligations hereunder. Anything to the contrary herein notwithstanding, in no event shall Broker's liability hereunder to Client exceed the commission or other compensation earned and paid or payable to Broker for this exclusive brokerage hiring. Additionally, Broker's liability hereunder shall not extend to any claims, actions, proceedings or other liability arising out of or relating to Client's acts that may result in an award or judgment against Client to the extent to which Client is determined or adjudicated to be solely or principally at fault. The provisions of this Paragraph 10 shall survive the termination or expiration of this Agreement. 11. During the Retention Period Broker shall use its best efforts to obtain an Office Property or space(s) at a location or locations and on terms satisfactory to Client. Broker's services shall include, without limitation, the following. Broker shall: A. Acquire the pertinent descriptive information, and all other relevant materials, details, and information necessary or advisable for Client's informed consideration, on all contemplated or presently available locations that in Broker's reasonable opinion professionally applied are the most suitable for Client's purposes. B. Carefully select and present to Client such suitable locations, with such pertinent and relevant information, at a time or times convenient to Client. C. Arrange for inspections of such suitable locations by Client or its representatives. D. Seek to obtain and negotiate offers on appropriate terms from lessors or owners and review them with Client. If and when Client decides on a potential transaction, Broker will negotiate the terms of the contemplated transaction on Client's behalf and in Client's interest, utilizing Broker's knowledge of real estate values and rentals, and the terms of the numerous sales and leases previously negotiated by Broker. E. Cooperate with attorneys for Client to prepare and finalize documents associated with the contemplated transaction. F. Meet and communicate periodically with Client to review the status of the search for Office Property and submit written reports of such status. 12. Client acknowledges that Broker shall not be responsible to determine whether or not hazardous waste or substances or other undesirable materials are present at the space or location that is the subject of any transaction entered into by Client in connection with this Agreement; provided, however, that Broker agrees to bring to Client's attention any information of which Broker is or becomes aware that may bear on the issue of the potential presence of any hazardous waste or substances or other undesirable materials. 13. Broker hereby warrants and represents to Client that Broker (and, if Broker is a legal entity other than an individual, all of its principals) does not now have, and shall not have at the time of the execution of any documents in connection with any transaction consummated in connection with this Agreement, any financial, proprietary, or any other legal interest or relationship, as agent, broker, or otherwise, in either the Office Property or other space or any of the entities constituting any lessor or owner, or affiliate of any lessor or owner, of such Office Property or space (singly and/or collectively, a "Related Interest") under any transaction that Broker presents to Client. If Broker, or any of its principals, does or do have any such Related Interest, Broker shall promptly disclose such Related Interest to Client, but in no event later than five (5) business days after the submission to Client of the potential Office Property or space in which such Related Interest exists. Upon such disclosure, Client may, in its sole and absolute discretion, proceed with or decline to proceed with the proposed transaction for such Office Property or space, or Client may propose alternate or amended terms for such proposed transaction. If Broker breaches its warranties or representations contained in this Paragraph 13 or misrepresents or withholds any required disclosure or facts regarding any Related Interest, Client may terminate this Agreement for cause, without waiving or releasing any claims or remedies available to Client, all of which are expressly reserved and shall survive the expiration or termination of this Agreement. 14. Notice hereunder shall be deemed sufficiently served and given only when mailed, postage prepaid, by registered or certified mail and addressed as follows:To Client: ___________________________________________________ ___________________________________________________ ___________________________________________________ ___________________________________________________ With a copy to: ___________________________________________________ ___________________________________________________ ___________________________________________________ ___________________________________________________ To Broker: ___________________________________________________ ___________________________________________________ ___________________________________________________ ___________________________________________________ With a copy to: ___________________________________________________ ___________________________________________________ ___________________________________________________ ___________________________________________________ Any party may, from time to time, designate a different address for notice by giving notice of such different address as herein provided. 15. Any controversy or claim arising out of or relating to this Agreement and the performance of the provisions hereof, shall be settled by arbitration in the City of New York in accordance with the rules and regulations of the American Arbitration Association or its successor; provided, however, that the arbitrator or arbitrators are expressly and specifically instructed to and shall follow the substantive laws of the State of New York, and each party shall be entitled to discovery pursuant to the Civil Practice Law and Rules of New York State. Each party shall preserve and have all rights to appeal or contest any arbitration award not made pursuant to or in conformity with the substantive laws of the State of New York. 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 arbitration award, and such action results in the award of a judgment for money damages or in the granting of any equitable remedy, all expenses (including, without limitation, court costs and reasonable attorneys' fees and disbursements) of the prevailing party in such action, suit, or other proceeding shall be paid promptly by the nonprevailing party. 16. Each person executing this Agreement on behalf of each party represents and warrants 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. 17. 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. 18. This Agreement 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 subject matter hereof except as herein stated. All prior agreements, communications or understandings between the parties are merged herein and shall be of no further force or effect. Any modification, rescission, termination (except pursuant to the express terms hereof) or extension of this Agreement shall not be valid or enforceable unless it is made in writing and signed and delivered by the parties hereto. This Agreement shall bind and inure to the benefit of the parties hereto and their respective successors and permitted assigns. 19. 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 Client and Broker shall have executed it and originals hereof shall have been delivered to the respective parties. 20. 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. 21. Client is relying on the specific knowledge and experience of Broker in its performance under this Agreement, that is deemed a personal obligation, and, therefore, assignment by Broker of its rights and/or obligations contained in this Agreement is strictly prohibited, and any attempted assignment by Broker shall constitute a default under this Agreement and shall be null and void. The parties agree that their obligations and representations contained herein shall survive the expiration or earlier termination of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. [NAME OF TENANT] Attest:_____________________ By:____________________________ Secretary Name:____________________ President [NAME OF BROKER] Attest:_____________________ By:____________________________ Secretary Name:____________________ President ACKNOWLEDGMENTS Client: State of New York ) County of ) ss.:On the ______ day of ______ in the year 2002 before me, the undersigned, personally appeared ______, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person or entity upon behalf of which the individual acted, executed the instrument. Notary Public Broker: State of New York ) County of ) ss.: On the ______ day of ______ in the year 2002 before me, the undersigned, personally appeared ______, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person or entity upon behalf of which the individual acted, executed the instrument. Notary PublicEXHIBIT A Default Commission Rates