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EXHIBIT 10.61
FINANCIAL ADVISORY FEE AGREEMENT
THIS FINANCIAL ADVISORY FEE AGREEMENT (this "Agreement") is
entered into as of , 1997 by and between Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and Tower Realty Trust, Inc., a
Maryland corporation (the "Company"), and Tower Realty Operating Partnership, a
Delaware limited partnership (the "Operating Partnership").
WHEREAS, Xxxxxxx Xxxxx has have provided financial advisory
services to the Company and the Operating Partnership in connection with the
evaluation, analysis and structuring of the formation of the Company and the
Operating Partnership and the transactions related thereto, and the Company and
the Operating Partnership desire to compensate Xxxxxxx Xxxxx for these services.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which hereby are acknowledged, the parties hereto
agree as follows:
1. In consideration of the financial advisory services
provided by Xxxxxxx Xxxxx to the Company and the Operating Partnership in
connection with the evaluation, analysis and structuring of the formation of the
Company and the Operating Partnership and the transactions related thereto, the
Company and the Operating Partnership, jointly and severally, shall pay (or
cause to be paid) to Xxxxxxx Xxxxx, at the closing of the initial public
offering of shares of common stock of the Company (the "Offering") and in
immediately available funds, an aggregate fee equal to 1.0% of the gross
offering proceeds (including any proceeds resulting from the Underwriters'
exercise of all or part of the overallotment option specified in the prospectus
relating to the Offering) raised by the Company in the Offering.
2. Each of the Company and the Operating Partnership, jointly
and severally, agrees to indemnify and hold harmless Xxxxxxx Xxxxx and each of
its directors, officers, agents, employees and controlling persons (within the
meaning of the Securities Act of 1933, as amended) from and against any losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
(collectively "Liabilities") related to or arising out of the services provided
to the Company and the Operating Partnership hereunder, and will reimburse
Xxxxxxx Xxxxx and each other person indemnified hereunder for all reasonable
legal and other expenses as incurred in connection with investigating or
defending any such Liabilities whether or not in connection with pending or
threatened litigation in which Xxxxxxx Xxxxx or any of its directors, officers,
agents, employees and controlling persons is a party; provided, however, that
the Company and the Operating Partnership will not be liable in any such case
(except cases arising out of the use of information provided by the Company or
the Operating Partnership) for Liabilities that a court of competent
jurisdiction shall have found in a final judgment to have arisen primarily from
the gross negligence or willful misconduct of Xxxxxxx Xxxxx or the party
claiming a right to indemnification.
In case any proceeding shall be instituted involving
any person in respect of whom indemnity may be sought, such person (the
"indemnified party") shall
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promptly notify the Company, and the Company and the Operating Partnership, upon
the request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and any
others the Company may designate in such proceeding and shall pay, as they are
incurred, the fees and expenses of such counsel related to such proceedings. In
any such proceeding, any indemnified party shall have the right to retain its
own counsel at its own expense, except that the Company and the Operating
Partnership shall pay, as they are incurred, the fees and expenses of counsel
retained by the indemnified party if (i) the Company and the indemnified party
shall have mutually agreed to the retention of such counsel or, (ii) the named
parties to any such proceeding (including any impleaded parties) include both
the Company and the indemnified party and representation of both parties by the
same counsel would be inappropriate, in the reasonable opinion of the
indemnified party, due to actual or potential differing interests between them.
The Company and the Operating Partnership shall not
be liable for any settlement of any action or proceeding effected without the
Company's prior consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Company and the Operating Partnership agree to
indemnify the indemnified parties to the extent set forth herein. In addition,
the Company and the Operating Partnership will not, without the prior written
consent of Xxxxxxx Xxxxx, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder (whether or not Xxxxxxx
Xxxxx or any indemnified party is an actual or potential party to such claim,
action, suit or proceeding) unless such settlement, compromise or consent
includes an unconditional release of Xxxxxxx Xxxxx and each other indemnified
party hereunder from all liability arising out of such claim, action, suit or
proceeding.
If a claim for indemnification hereunder is
determined to be unenforceable by a final judgment of a court of competent
jurisdiction, then the Company and the Operating Partnership, jointly and
severally, shall contribute to the aggregate losses, claims, damages or
liabilities to which Xxxxxxx Xxxxx or its officers, directors, agents, employees
or controlling persons may be subject in such amount as is appropriate to
reflect the relative benefits received by each of the Company, the Operating
Partnership and the party seeking contribution on the one hand, and the relative
faults of the Company, the Operating Partnership and the party seeking
contribution on the other, as well as any other relevant equitable
considerations; provided, however, that in no event shall the aggregate amount
contributed by all indemnified parties exceed the amount of fees actually
received by Xxxxxxx Xxxxx pursuant to this Agreement. The relative benefits
received or sought to be received by the Company and the Operating Partnership
on the one hand and the indemnified parties on the other shall be deemed to be
in the same proportion as (a) the total value of the transactions with respect
to which Xxxxxxx Xxxxx has provided services hereunder bears to (b) the fees
paid or payable to Xxxxxxx Xxxxx hereunder.
The indemnification and contribution provided herein
shall survive closing of the Offering and shall be binding upon any successors
or assigns of the Company.
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3. Nothing contained in this Agreement shall limit in any way
any rights or obligations of the parties hereto under any other agreement.
4. The parties hereto acknowledge that the financial advisory
services provided by Xxxxxxx Xxxxx hereunder are not underwriting services and
are separate and apart from those services provided by Xxxxxxx Xxxxx and the
other named underwriters (the "Underwriters") under that certain Underwriting
Agreement dated the date hereof by and between the Company, the Operating
Partnership and the Underwriters.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be duly executed on their behalf as of the date first set forth above.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
Name:
Title:
TOWER REALTY TRUST, INC.
By:
Xxxxxxxx X. Xxxxxxx
Chairman, President and Chief
Executive Officer
TOWER REALTY OPERATING PARTNERSHIP
By: Tower Realty Trust, Inc., its sole
general partner
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Xxxxxxxx X. Xxxxxxx
Chairman, President and Chief
Executive Officer
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