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Charlotte Region Commercial Board of Realtors [logo]
LISTING AGREEMENT OF PROPERTY FOR SALE
THIS LISTING AGREEMENT OF PROPERTY FOR SALE IS MADE THIS 1st
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DAY OF July 1996
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BY AND BETWEEN Colliers Vinson,
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(Name of Firm)
( "LISTING AGENCY")
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AND Yager/Kuester Public Fund Limited Partnership , ("SELLER").
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In consideration of Listing Agency's agreement to list the following
described property, hereinafter known as "Property" for Sale and to use its
efforts to find a Buyer, the undersigned Seller agrees with the Listing Agency
as follows:
1. EXCLUSIVE RIGHT TO SELL. For a period extending until midnight on
December 31 , 19 96 . Listing Agency shall have the exclusive right to
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Sell the Property as agent of Seller at the price and on the terms set forth
below, or upon such other terms as may be agreed upon in writing by Seller with
any Buyer.
2. BROKER COOPERATION/AGENCY RELATIONSHIPS. Listing Agency has advised Seller
of Listing Agency's general company policy regarding cooperation with
Subagents, Buyer's Agents or Dual Agents. Seller has read the disclosure
regarding real estate agency relationships contained herein, and agrees to
authorize the Listing Agency to compensate (subject to paragraphs 7.b. (i) and
7. B. (ii) and cooperate with the following: (CHECK ALL APPLICABLE AGENCIES)
XX Subagents representing only the Seller
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XX Buyer Agents representing only the Buyer
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XX Seller authorizes Listing Agency to act as a Dual Agent representing
---- both the Seller and the Buyer in the same transaction.
(When Dual Agency occurs, a separate agreement will be executed.)
Listing Agency agrees to inquire of all agents at the time of initial contact
as to their agency status. A written disclosure of agency shall be provided to
Seller in connection with the presentation of any contract pursuant to the
Listing Agreement.
3. PROPERTY: (ADDRESS) 6623 and 6625 Executive Circle, Charlotte, NC.
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(Legal description/Description) East Park Executive Center
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consisting of land and two buildings
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XX See attached Exhibit A for legal description/description
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of premises.
4. LISTING GUIDELINES:
Sales Price 3,800,000 Other Terms:
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Seller Financing Terms None .
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Possession Delivered Upon Delivery of Deed .
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SIGNS: You may XX may not place a sign on the Property.
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Seller agrees to remove all other signs.
ADVERTISING: You may XX may not advertise the Property.
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DATA BASE LISTING: This listing may be XX may not be
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entered in available database listings.
MARKETING EXPENSE: In the event that the Property does not sell during
the terms of this Agreement, Seller shall nonetheless be obligated to reimburse
Listing Agency for actual expenses incurred in marketing the Property up to the
amount of $ 0 .
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5. SPECIAL PROVISIONS (AN ADDENDUM IF ATTACHED, IS INCORPORATED HEREIN BY
REFERENCE):
It is understood that a vote of the Limited Partners must be held prior to the
sale of a majority of the Partnership assets: accordingly, any sale of the
propert (ies) is subject to the approval of a majority of the Limited Partners.
6. COOPERATION WITH LISTING AGENCY:
A. EXCLUSIVE RIGHTS: Seller agrees to cooperate with Listing Agency (or
agents acting for or through it) to facilitate the sale of the Property. The
Property may be shown only by appointment made by or through Listing Agency.
Seller shall refer to Listing Agency all inquires or offers it may receive
regarding this Property. Seller agrees to cooperate with Listing Agency in
bringing about a sale of the Property, to furnish Listing Agency with a copy of
any lease or master lease affecting the Property and to immediately refer to
Listing Agency all inquires by anyone interested in the Property. All
negotiations shall be conducted through Listing Agency. Listing Agency shall
be identified as the contact firm with all state and local economic development
agencies being notified of the Property's availability.
B. SERVICES: No management services, repair services, collection
services, notices, legal services or tax services shall be provided by the
Listing Agency. In the event the Listing Agency does procure any
of the services at the request of the Seller, it is understood and agreed that
Listing Agency shall only be acting in the capacity of procurer for the Seller
and shall accrue no liability or responsibility in connection with any services
so obtained on behalf of Seller. This exclusion of liability and
responsibility shall not apply in the event that Listing Agency directly
contracts with Seller to provide any such service.
C. LATER SALE TO PROSPECT: If within 90 days after the expiration
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of the exclusive listing period Seller shall directly or indirectly sell or
agree to sell the Property to a party to whom Listing Agency (or any other
agent acting for or through Listing Agency) has communicated concerning the
Property during this exclusive listing period, Seller shall pay Listing Agency
the same commission to which it would have been entitled had the sale or been
made during the exclusive period; provided, that names of prospects are
delivered or postmarked to the Seller within ten (10) days after the expiration
of the exclusive listing period. In the event the subject Property is
exclusively listed for sale with another agency after the expiration of this
agreement and a registered prospect options or contracts to purchase the
Property within 90 days of the expiration of this agreement, then the
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Seller shall pay to the Listing Agency 50 % of the commission provided for
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in Paragraph 7 below.
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CRCBR FORM #201
Copyright 7/95
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7. COMMISSIONS: The amount, format or rate of real estate commission is not
fixed by law. Commissions are set by each broker individually and may be
negotiable between principal and broker.
A. SALES COMMISSIONS:
(i) Listing Agency's commission shall be calculated according to the
schedule in Paragraph 7.a.(ii). Commissions shall be paid in cash or bank
check. Gross sales price shall include any and all consideration received or
receivable, in whatever form, including but not limited to the assumption or
release of existing liabilities. The commission shall be paid upon delivery of
the deed or other evidence of transfer of title or interest; provided, however,
if the transaction involves an installment contract, then payment shall be made
upon the signing of such installment contract. In the event of any breach by
Seller, his successors or assigns, of any contract of purchase and sale, it is
understood and agreed that the commission shall remain earned and payable upon
notice given by Seller to purchaser of his intent not to proceed with such
sale, notwithstanding the basis of such intent not to proceed. In the event
Seller contributes or conveys the Property or any interest therein to a joint
venture, partnership or other business entity or executes an exchange, the
commission shall be calculated on the fair market value of the Property or
interest therein contributed, conveyed, transferred or exchanged and shall be
payable at the time of the contribution, conveyance, transfer or exchange. If
Seller is a partnership, corporation or other business entity, and an interest
in the partnership, corporation or other business entity is transferred,
whether by merger, outright purchase, or otherwise, in lieu of a sale of the
Property, and applicable law does not prohibit the payment of a commission in
connection with such sale or transfer, the commission shall be calculated on
the fair market value of the Property, rather than the gross sales price,
multiplied by the percentage of interest so transferred, and shall be paid at
the time of the transfer.
(ii) Schedule of Commissions (complete each option which might apply):
(1) OUTRIGHT SALE OF PROPERTY (INCLUDING PERSONAL PROPERTY):
3 % of the gross sales price of real property, 3 % of the gross sales
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price of personal property.
(2) OUTRIGHT SALE OF LAND OR LAND WITH A BUILD TO SUIT SALE
CONTRACT: % of the listed price of the land, PLUS N/A % of the
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gross cost of the improvements provided to the Property upon issuance of the
occupancy permit or the completion of the improvements agreed prior to, during
or within one (1) year of the construction phase of the project.
(3) GROUND LEASE WITH A BUILD TO SUIT, PURCHASE OF IMPROVEMENTS:
% of the gross ground rents over the life of the lease, PLUS N/A % of
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the gross cost of the improvements provided to the Property upon
issuance of the occupancy permit or the completion of the improvements as
agreed prior to, during, or within one (1) year of the construction phase of the
project.
(4) EXCHANGES: 3 % of the market value of the listed property
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being exchanged by the Seller. Listing Agency is also entitled to a 0 %
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commission on the market value of the exchange property used to effect the
exchange if he played any role in acquiring, locating or identifying the
exchange property or suggested and facilitated the use of the exchange
mechanism for the transaction.
(iii) Options/Earnest Money: 10 % of any fees or earnest money
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shall be paid to Listing Agency at the time such monies are paid to Seller;
should there be a forfeiture of option fees or earnest money, Listing Agency
shall be entitled to 10 % of same; said amounts to be applied to
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commissions payable pursuant to paragraph 7.a.(ii) above; provided, Listing
Agency shall not be paid, on account of this provision, an amount in excess of
its entitlement pursuant to paragraph 7.a.(ii) above.
B. GENERAL COMMISSIONS PROVISIONS:
(i) Listing Agency shall not be required to compensate or pay any
commission to, either directly or indirectly, a Buyer (or principal, officer,
director, partner, member or substantial shareholder thereof) who seeks to be
compensated or paid a commission in connection with any transaction with Seller
pursuant to this agreement.
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(ii) If Listing Agency shall have worked directly with a Buyer in
connection with the Property, either as a client or a customer, and such
relationship is evidenced in writing (either by an Agency Disclosure - CRCBR
Form 100 or substantially similar registration document) then Listing Agency
shall not be permitted to compensate or pay any commission to another real
estate agent (not associated with Listing Agency) in connection with any
transaction pursuant to this agreement, which transaction involves said Buyer
so registered.
(iii) In the event Seller fails to make payments within the time limits
set forth herein, then the delinquent amount shall bear interest from the date
due until the paid at the maximum rate permitted in the state in which the
office of the Listing Agency is located. If Listing Agency is required to
institute legal action (including arbitration) against Seller relating to this
or any agreement of which it is a part, Listing Agency shall be entitled to
reasonable attorney's fees and costs.
(iv) The term "Seller" as used herein shall be deemed to include, but not
be limited to, the owner of the Property, a party under contract to acquire the
Property. The term "Buyer" as used herein shall be deemed to include, but not
to be limited to, assignee of a Buyer.
8. REPRESENTATIONS: Seller represents and warrants to Listing Agency that it
has the right to offer the Property for sale and further represents and warrants
that it has the right and authority to execute and deliver such instruments as
may be necessary to effectuate any transaction contemplated hereby.
9. ENVIRONMENTAL MATTERS: Seller, directly or through whom a claim may be made
by any other party or parties against the Listing Agency shall indemnify,
defend and hold harmless the Listing Agency, its agents and employees from any
loss, liability, damage, cost or expense, including without limitation,
reasonable legal, accounting, consulting, engineering, court costs and other
expenses related to the presence of storage tanks or the presence or release of
hazardous substances, which are defined as those substances, materials, and
wastes, including but not limited to, those substances, materials and wastes
listed in the United States Department of Transportation Hazardous Materials
Table (490 CFR 172.101) or by the Environmental Protection Agency as hazardous
substances (40 CFR Part 302) and amendments thereto, or such substances,
materials and wastes or substance which are or become regulated under any
applicable local, state or federal, including, without limitation, any
material, waste or substance which is (i) petroleum, (ii) asbestos, (iii)
polychlorinated biphenyl, (iv) designated as a "hazardous substance" pursuant
to Section 311 of the Clean Water Act, 33 U.S.C. Sec.1251, et seq, (33 U.S.C.
Sec. 1321) or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C.
Sec. 1317), (v) defined as a "hazardous waste" pursuant to Section 1004 of the
Resource Conservation and Recovery Act, 42 U.S.C. Sec. 6901, et seq., (42
U.S.C. Sec. 6903) or (vi) defined as a "hazardous substance" pursuant to
Section 101 of the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. Sec.9601, et seq., (42 U.S.C. Sec. 9601).
10. BANKRUPTCY: In the event that the Property comes under the jurisdiction of
a bankruptcy court, Seller shall immediately notify the Listing Agency of the
same and, if Seller is the subject of bankruptcy, shall promptly take all
steps necessary to obtain court approval of Listing Agency's appointment to
sell the Property, unless Listing Agency shall elect to terminate this
Agreement upon said notice.
11. INDEMNIFICATION: Seller represents and warrants that the information set
forth herein and any other information as may be furnished by the Seller is
correct to the best of Seller's knowledge; Listing Agency shall have no
obligation or responsibility for checking or verifying any such information.
Further, Seller agrees to indemnify Listing Agency for any and all loss or
damage sustained by Listing Agency as a result of Listing Agency's or Seller's
furnishing such information to a buyer or anyone else.
12. LEASE PROTECTION PROVISION: In the event that the Property is leased
during the term hereof, and this agreement does not specify the amount of such
lease commissions, it is acknowledged that a commission shall be nonetheless
earned upon execution of such lease agreement and payable in accordance with
the terms of this agreement. The parties agree to act in good faith in
determining that the commission is an amount reasonable in this area for the
particular type of property in question.
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13. PARTIES AND BENEFIT: This agreement shall be binding upon and inure to the
benefit of the parties, their heirs, successors and assigns and their personal
representatives. Each signatory to this agreement represents and warrants that
he or she has full authority to sign this agreement on behalf of the party for
whom he or she signs and that this agreement binds such party. This agreement
contains the entire agreement of the parties and may not be modified except in
a writing signed by all of the parties hereto.
14. THE BROKER SHALL CONDUCT ALL HIS BROKERAGE ACTIVITIES IN REGARD TO THIS
AGREEMENT WITHOUT RESPECT TO THE RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN,
HANDICAP OR FAMILIAL STATUS OF ANY BUYER OR PROSPECTIVE BUYER, SELLER OR
PROSPECTIVE SELLER, BUYER OR PROSPECTIVE BUYER, SELLER OR PROSPECTIVE SELLER.
(2 of 3)
CRCBR FORM #201 (2 of 3)
Copyright 7/95
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THIS DOCUMENT IS A LEGAL DOCUMENT. EXECUTION OF THIS DOCUMENT HAS LEGAL
CONSEQUENCES THAT COULD BE ENFORCEABLE IN A COURT OF LAW. THE CHARLOTTE REGION
COMMERCIAL BOARD OF REALTORS (MAKES NO REPRESENTATIONS CONCERNING THE LEGAL
SUFFICIENCY, LEGAL EFFECT OR TAX CONSEQUENCES OF THIS DOCUMENT OR THE
TRANSACTION TO WHICH IT RELATES AND RECOMMENDS THAT YOU CONSULT YOUR ATTORNEY.
LISTING AGENCY: Colliers Vinson
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(Name of Firm)
By: /S/ Kent Wood (SEAL)
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Kent Wood
SELLER:
INDIVIDUAL: BUSINESS ENTITY:
(SEAL) Yager/ Kuester Public Fund Limited Partnership
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(Name of Firm)
(SEAL) By: /s/ Faison S. Kuester, Jr. (SEAL)
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Title: General Partner
DESCRIPTION OF AGENT DUTIES AND RELATIONSHIPS
Before you begin working with any real estate agent, you should know who the
agent represents in the transaction. Every listing agreement, buyer agency
agreement or other agreement for brokerage services in a real estate sales
transaction in North Carolina must contain this "Description of Agent Duties
and Relationships" [N.C. Real Estate Commission Rule 21 NCAC 58A,0104(c), eff.
7/1/95]. Real estate agents should carefully review this information with you
prior to entering into any agency agreement.
AGENTS' DUTIES
When you contract with a real estate firm to act as your agent in a real estate
transaction, the agent must help you obtain the best price and terms possible,
whether you are the buyer or seller. The agent owes you the duty to:
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*Safeguard and account for any money handled for you
*Be loyal and follow reasonable and lawful instructions
*Act with reasonable skill, care and diligence
*Disclose to you any information which might
influence your decision to buy or sell
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Even if the agent does not represent you, the agent must still be fair and
honest and disclose to you all "material facts" which the agent
knows or reasonably should know. A fact is "material" if it relates to defects
or other conditions affecting the property, or if it may influence your
decision to buy or sell. This does not require a seller's agent to disclose to
the buyer the minimum amount the seller will accept, nor does it require a
buyer's agent to disclose to the seller the maximum price the buyer will pay.
AGENTS WORKING WITH SELLERS
A seller can enter into a "listing agreement" with a real estate firm
authorizing the firm and its agent(s) to represent the seller in finding a
buyer for his property. This listing agreement should state what the seller
will pay the listing firm for its services, and it may require the seller to
pay the firm no matter who finds the buyer.
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The listing firm may belong to a listing service to expose the seller's
property to other agents who are members of the service. Some of those agents
may be working for other buyers as buyers' agents; others will be working with
buyers but still representing the sellers' interests as an agent or "subagent".
When the buyer's agents and seller's subagents desire to share in the
commission the seller pays to the listing firm, the listing agent may share the
commission with the seller's permission.
AGENTS WORKING WITH BUYERS
A buyer may contract with an agent or firm to represent him (as a buyer's
agent), or may work with an agent or firm that represents the seller (as a
SELLER'S AGENT or SUBAGENT). All parties in the transaction should find out at
the beginning who the agent working with the buyer represents.
If a buyer wants a buyer's agent to represent him in purchasing a property, the
buyer should enter into a "buyer agency agreement" with the agent. The buyer
agency agreement should state how the buyer's agent will be paid. UNLESS SOME
OTHER ARRANGEMENT IS MADE WHICH IS SATISFACTORY TO THE PARTIES, THE BUYER'S
AGENT WILL BE PAID BY THE BUYER. Many buyer agency agreements will also
obligate the buyer to pay the buyer's agent no matter who finds the property
that the buyer purchases.
A buyer may decide to work with a firm that is acting as agent for the seller
(a SELLER'S AGENT or SUBAGENT). If a buyer does not enter into a buyer agency
agreement with the firm that show him properties, that firm and its agents will
show the buyer properties as an agent or subagent working on the seller's
behalf. Such a firm represents the seller (not the buyer) and must disclose
that fact to the buyer.
A seller's agent or subagent must still treat the buyer fairly and honestly and
disclose to the buyer all material facts which the agent knows or reasonably
should know. The seller's agent typically will be paid by the seller. IF THE
AGENT IS ACTING AS AGENT FOR THE SELLER, THE BUYER SHOULD BE CAREFUL NOT TO
GIVE THE AGENT ANY INFORMATION THAT THE BUYER DOES NOT WANT THE SELLER TO KNOW.
DUAL AGENTS
A real estate agent or firm may represent more than one party in the same
transaction only with the knowledge and consent of all parties
for whom the agents acts. "Dual Agency" is most likely to occur when a buyer
represented by a buyer's agent wants to purchase a property listed by the
agent's firm. A dual agent must carefully explain to each party that the agent
and the agent's firm are also acting for the other party.
In any dual agency situation, the agent must obtain a written agreement from
the parties which fully describes the obligations of the agent and the agent's
firm to each of them.
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This firm represents both sellers and buyers. This means that it is
possible that a buyer we represent will want to purchase a property owned by a
seller we represent. When that occurs, the agent and the firm listed above
will act as dual agents if all parties agree.
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CRCRB FORM #201
Copyright 7/95
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[ EXHIBIT A(1) ]
Set forth in drawing, Building 6623
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[ EXHIBIT A(2) ]
Set forth in drawing, Building 6625