1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 The printed portions of this form, except differentiated additions, have been approved by the Colorado Real Estate Commission. (ETC39-5-04) THIS IS A BINDING CONTRACT. THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE PARTIES SHOULD CONSULT LEGAL AND TAX OR OTHER COUNSEL BEFORE SIGNING. Compensation charged by real estate brokerage firms is not set by law. Such charges are established by each real estate brokerage firm. DIFFERENT BROKERAGE RELATIONSHIPS ARE AVAILABLE WHICH INCLUDE LANDLORD AGENCY, TENANT AGENCY, BUYER AGENCY, SELLER AGENCY OR TRANSACTION-BROKERAGE. EXCLUSIVE TENANT CONTRACT (FOR ALL TYPES OF PREMISES) (TRANSACTION-BROKERAGE) Date: 1. AGREEMENT. Tenant and Brokerage Firm enter into this exclusive, irrevocable contract as of the date set forth above. 2. BROKERAGE RELATIONSHIP. a. Multiple-Person Firm. If this box is checked, the individual designated by Brokerage Firm to serve as the broker of Tenant and to perform the services for Tenant required by this contract is called Broker. If more than one individual is so designated, then references in this contract to Broker shall include all persons so designated, including substitute or additional brokers. The brokerage relationship exists only with Broker and does not extend to the employing broker, Brokerage Firm or to any other brokers employed or engaged by Brokerage Firm who are not so designated. b. One-Person Firm. If this box is checked, Broker is a real estate brokerage firm with only one licensed natural person. References in this contract to Broker or Brokerage Firm mean both the licensed natural person and brokerage firm, who serve as the broker of Tenant and perform the services for Tenant required by this contract. 3. DEFINED TERMS. a. Tenant: , and any other person or entity on whose behalf the named party acts, directly or indirectly, to Lease the Premises. b. Brokerage Firm: c. Broker: d. Premises. Premises means real estate which substantially meets the following American LegalNet, Inc. requirements or similar real estate acceptable to Tenant: www.USCourtForms.com No. ETC39-5-04 EXCLUSIVE TENANT CONTRACT (All Types of Premises) (Transaction-Brokerage) Page 1 of 7 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 . e. Lease. (1) Lease of the Premises or Lease means any lease of an interest in the Premises. (2) If this box is checked, Tenant authorizes Broker to negotiate a purchase of the Premises. Purchase of the Premises or Purchase means the acquisition of any interest in the Premises or the creation of the right to acquire any interest in the Premises (including a contract or lease). It also includes an agreement to acquire any ownership interest in an entity that owns the Premises. f. Term. The Term of this contract shall begin on , and shall continue through the earlier of (1) completion of the Lease or purchase of the Premises or (2) . Broker shall continue to assist in the completion of any transaction for which compensation is payable to Brokerage Firm under § 6 of this contract. g. Applicability of Terms. A check or similar mark in a box means that such provision is applicable. The abbreviation N/A means not applicable. The abbreviation "MEC" (mutual execution of this contract) means the latest date upon which both parties have signed this contract. For purposes of this agreement, "landlord" includes sublandlord and "tenant" includes subtenant. 4. BROKERAGE SERVICES AND DUTIES. Brokerage Firm, acting through Broker, shall provide brokerage services to Tenant. Broker will make reasonable efforts to locate the Premises, and to assist the parties in complying with the terms and conditions of any Lease of the Premises. a. Broker shall exercise reasonable skill and care for Tenant, including, but not limited to: (1) Presenting all offers to and from Tenant in a timely manner regardless of whether Tenant is already a party to a written agreement to Lease the Premises; (2) Disclosing to Tenant adverse material facts actually known by Broker; (3) Advising Tenant regarding the transaction and suggesting that Tenant obtain expert advice as to material matters about which Broker knows but the specifics of which are beyond the expertise of Broker; (4) Accounting in a timely manner for all money and property received; and (5) Keeping Tenant and landlord fully informed regarding the transaction. b. Broker shall not disclose the following information to the landlord or any other third party, without the informed consent of Tenant: (1) That Tenant is willing to pay more than the offered lease rate for the Premises; (2) What Tenant's motivating factors are; (3) That Tenant will agree to Lease terms other than those offered; (4) Any material information about Tenant unless disclosure is required by law or failure to disclose such information would constitute fraud or dishonest dealing; or (5) Any facts or suspicions regarding circumstances that could psychologically impact or stigmatize the Premises. American LegalNet, Inc. www.USCourtForms.com No. ETC39-5-04 EXCLUSIVE TENANT CONTRACT (All Types of Premises) (Transaction-Brokerage) Page 2 of 7 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 c. Tenant consents to Broker’s disclosure of Tenant’s confidential information to the supervising broker or designee for the purpose of proper supervision, provided such supervising broker or designee shall not further disclose such information without consent of Tenant, or use such information to the detriment of Tenant. d. Tenant shall not be vicariously liable for the acts of Broker that are not approved, directed or ratified by Tenant. e. Broker has no duty to conduct an independent inspection of the Premises for the benefit of Tenant and has no duty to independently verify the accuracy or completeness of statements made by an owner, landlord or independent inspectors. Broker has no duty to conduct an independent investigation of Tenant's financial condition or to verify the accuracy or completeness of any statement made by Tenant. f. Broker shall disclose to any prospective landlord all adverse material facts actually known by Broker, including but not limited to adverse material facts concerning Tenant's financial ability to perform the terms of the transaction. g. In-Company Transaction – Different Brokers. When the landlord and Tenant in a transaction are working with different brokers within the same Brokerage Firm, those brokers continue to conduct themselves consistent with the brokerage relationships they have established. Tenant acknowledges that Brokerage Firm is allowed to offer and pay compensation to brokers within Brokerage Firm working with a landlord. h. In-Company Transaction – One Broker. If the landlord and Tenant are both working with the same broker, Broker shall continue to work as a Transaction-Broker. 5. TENANT'S OBLIGATIONS TO BROKER. Tenant agrees to conduct all negotiations for the Lease of the Premises only through Broker, and to refer to Broker all communications received in any form from real estate brokers, prospective landlords, owners, or any other source during the Term of this contract. Tenant represents that Tenant Is Is Not currently a party to any agreement with any other broker to represent or assist Tenant in the location or Lease of the Premises. 6. COMPENSATION TO BROKERAGE FIRM. In consideration of the services to be performed by Broker, Tenant shall pay Brokerage Firm as set forth in this section, with no discount or allowance for any efforts made by Tenant or any other person. Check Compensation Arrangement: a. Listing Brokerage Firm, Landlord or Sublandlord May Pay. Tenant is NOT Obligated to Pay. Broker is authorized to obtain payment of the Brokerage Firm’s fee from the listing brokerage firm, landlord or sublandlord. Brokerage Firm shall be entitled to receive additional compensation, bonuses, and incentives paid by listing brokerage firm, landlord or sublandlord. Broker shall inform Tenant of the fee to be paid to Brokerage Firm and, if there is a written fee agreement, Broker shall supply a copy to Tenant, upon written request of Tenant. Tenant shall not be obligated to pay Brokerage Firm’s fee. This subsection shall apply to New Premises Tenant’s Existing Premises Both. b. Listing Brokerage Firm, Landlord or Sublandlord May Pay. Tenant IS Obligated American LegalNet, Inc. www.USCourtForms.com No. ETC39-5-04 EXCLUSIVE TENANT CONTRACT (All Types of Premises) (Transaction-Brokerage) Page 3 of 7 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 to Pay. Broker is authorized and instructed to request payment of the Brokerage Firm’s fee from the listing brokerage firm, landlord or sublandlord. Brokerage Firm shall be entitled to receive additional compensation, bonuses, and incentives paid by listing brokerage firm, landlord or sublandlord. Broker shall inform Tenant of the fee to be paid to Brokerage Firm and, if there is a written fee agreement, Broker shall supply a copy to Tenant, upon written request of Tenant. Tenant shall be obligated to pay any portion of Brokerage Firm's fee as described below which is not paid by the listing brokerage firm, landlord or sublandlord. This subsection shall apply to New Premises Tenant’s Existing Premises Both. (1) Success Fee. Brokerage Firm shall be paid a fee of: (a) $ Per Square Foot per , up to a maximum of ; or (b) _____ % of the Net Gross amount of the rent payable under the lease up to a maximum of ; or (c) $ . The Success Fee is earned by the Brokerage Firm upon the execution of the Lease. One-half of this fee shall be paid upon the execution of the Lease and onehalf upon possession of the Premises by Tenant or as follows: . (2) Hourly Fee. Brokerage Firm shall be paid $ per hour for time spent by Broker pursuant to this contract, up to a maximum total fee of $ ________. This hourly fee shall be paid to Brokerage Firm upon receipt of an invoice from Brokerage Firm. (3) Retainer Fee. Tenant shall pay Brokerage Firm a nonrefundable retainer fee of $_________ due and payable upon signing of this contract. This amount Shall Shall Not be credited against other fees payable to Brokerage Firm under this section. (4) Other Compensation. c. Purchase Fee. If the box in subsection 3e(2) is checked and if Brokerage Firm is unable to obtain payment of Brokerage Firm’s entire fee from listing brokerage firm or seller, Tenant shall pay the Brokerage Firm a fee equal to the greater of $ or % of the purchase price for the Premises, less any amounts paid by the listing brokerage firm or seller, payable upon delivery of deed. d. Fee for Extension and Renewal. If the Lease, executed after the date of this contract, contains an option to extend or renew, Brokerage Firm Shall Shall Not be paid a fee upon exercise of such extension or renewal option. If Brokerage Firm is to be paid a fee for such extension or renewal, the amount of such fee and its payment shall be as follows: . e. Holdover Period. The Brokerage Firm’s fee shall apply to Premises leased (or purchased if the subsection 3e(2) is checked) during the Term of this contract or any extensions and shall also apply to the Premises leased or purchased within ______ calendar days after this contract expires or is terminated (Holdover Period) if the Premises is one on which Broker negotiated and if Broker submitted its address or other description in writing to Tenant during the Term. Provided, however, if a commission is earned by another real estate brokerage firm acting pursuant to an exclusive agreement with Tenant entered into during the Holdover Period, Brokerage firm shall be owed no No. ETC39-5-04 EXCLUSIVE TENANT CONTRACT (All Types of Premises) (Transaction-Brokerage) Page 4 of 7 American LegalNet, Inc. www.USCourtForms.com 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 compensation to Brokerage Firm under subsections 6b(1), 6b(4), 6c or 6d above. 7. LIMITATION ON THIRD-PARTY COMPENSATION. Neither Broker nor Brokerage Firm, except as set forth in § 6, shall accept compensation from any other person or entity in connection with the Premises without the written consent of Tenant. Additionally, neither Broker nor Brokerage Firm shall be permitted to assess and receive mark-ups or other compensation for services performed by any third party or affiliated business entity unless Tenant signs a separate written consent for such services. 8. COSTS OF SERVICES OR PRODUCTS OBTAINED FROM OUTSIDE SOURCES. Broker will not obtain or order products or services from outside sources unless Tenant has agreed to pay for them promptly when due (examples: space planning, drawings, surveys, radon tests, soil tests, title reports, engineering studies, property inspections). Neither Broker nor Brokerage Firm shall be obligated to advance funds for Tenant. Tenant shall reimburse Brokerage Firm for payments made by Brokerage Firm for such products or services authorized by Tenant. 9. SHOWING PREMISES. Tenant acknowledges that Broker has explained the possible methods used by listing brokers, landlords and sublandlords to show premises, and the limitations (if any) on Tenant and Broker being able to access premises due to such methods. Broker's limitations on accessing premises are as follows: . Broker, through Brokerage Firm, has access to the following multiple listing services and property information services: . 10. DISCLOSURE OF TENANT'S IDENTITY. Broker Does Does Not have Tenant's permission to disclose Tenant's identity to third parties without prior written consent of Tenant. 11. OTHER TENANTS. Tenant acknowledges that, under Colorado law, Broker may show premises in which Tenant is interested to other prospective tenants without breaching any duty or obligation to Tenant. 12. NONDISCRIMINATION. The parties agree not to discriminate unlawfully against any prospective landlord because of the race, creed, color, sex, marital status, national origin, familial status, physical or mental handicap, religion or ancestry of such person. 13. RECOMMENDATION OF LEGAL AND TAX COUNSEL. By signing this document, Tenant acknowledges that Broker has advised that this document has important legal consequences and has recommended consultation with legal and tax or other counsel before signing this contract. 14. MEDIATION. If a dispute arises relating to this contract, prior to or after its performance, and is not resolved, the parties shall first proceed in good faith to submit the matter to mediation. Mediation is a process in which the parties meet with an impartial person who helps to resolve the dispute informally and confidentially. Mediators cannot impose binding decisions. The parties to the dispute must agree before any settlement is binding. The parties will jointly appoint an acceptable mediator and will share equally in the cost of such mediation. The mediation, unless otherwise agreed, shall terminate in the event the entire dispute is not resolved within 30 calendar days of the date written notice requesting mediation is sent by one party to the other at the party’s last known address. 15. ATTORNEY FEES. In the event of any arbitration or litigation relating to this contract, the arbitrator or court shall award to the prevailing party all reasonable costs and expenses, including No. ETC39-5-04 EXCLUSIVE TENANT CONTRACT (All Types of Premises) (Transaction-Brokerage) Page 5 of 7 American LegalNet, Inc. www.USCourtForms.com 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 attorney and legal fees. 16. ADDITIONAL PROVISIONS. (The following additional provisions have not been approved by the Colorado Real Estate Commission.) 17. ATTACHMENTS. The following are a part of this contract: 18. NOTICE, DELIVERY AND CHOICE OF LAW. a. Physical Delivery. Except for the notice requesting mediation described in § 14, and except as provided in § 18b below, any notice to the other party to this contract must be in writing and is effective upon receipt. b. Electronic Delivery. As an alternative to physical delivery, any signed documents and written notice may be delivered in electronic form by the following indicated methods only: Facsimile E-mail None. Documents with original signatures shall be provided upon request of any party. c. Choice of Law. This contract and all disputes arising hereunder shall be governed by and construed in accordance with the laws of the State of Colorado that would be applicable to Colorado residents who sign a contract in this state for property located in Colorado. 19. MODIFICATION OF THIS CONTRACT. No subsequent modification of any of the terms of this contract shall be valid, binding upon the parties, or enforceable unless in writing and signed by the parties. 20. COUNTERPARTS. If more than one person is named as a Tenant herein, this contract may be executed by each Tenant, separately, and when so executed, such copies taken together with one executed by Broker on behalf of Brokerage Firm shall be deemed to be a full and complete contract between the parties. 21. ENTIRE AGREEMENT. This agreement constitutes the entire contract between the parties and any prior agreements, whether oral or written, have been merged and integrated into this contract. 22. COPY OF CONTRACT. Tenant acknowledges receipt of a copy of this contract signed by Broker, including all attachments. Brokerage Firm authorizes Broker to execute this contract on behalf of Brokerage Firm. Date: Date: Tenant Address: Phone No.: Tenant Fax No.: No. ETC39-5-04 EXCLUSIVE TENANT CONTRACT (All Types of Premises) (Transaction-Brokerage) Page 6 of 7 American LegalNet, Inc. www.USCourtForms.com 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 Email Address: Date: Broker Broker's Name: Address: Phone No.: Email Address: Fax No.: Brokerage Firm's Name: Address: Phone No.: Email Address: Fax No.: No. ETC39-5-04 EXCLUSIVE TENANT CONTRACT (All Types of Premises) (Transaction-Brokerage) Page 7 of 7 American LegalNet, Inc. www.USCourtForms.com