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EXHIBIT No. 10.9
LANDLORD'S EXCLUSIVE COMMERCIAL LISTING AGREEMENT
This Agreement is made this 10th day of February , by and
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between Xxxxxx, Inc. ("Broker") and Xxxxxx Realty Trust
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("Client"). Broker hereby designates Xxxxxxxx X. Xxxxxx
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as Broker's agent to perform all of the duties and obligations of Broker
under this Agreement.
1. Client represents that it is the owner of the following described real
property ("Property"), and/or that Client has the requisite authority to
engage Broker to lease the Property.
PROPERTY ADDRESS AND DESCRIPTION: ACI Building, 330 S. 108th Ave.,
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Xxxxx, XX 00000; Atrium @ Alpha Business Center, 0000 X. 00xx Xx.,
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Xxxxxxxxxxx, XX; Franklin Park Warehouse, 0000 Xxxxxx, Xxxxxxxx Xxxx, XX
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2. Client hereby appoints Broker as its sole and exclusive agent to lease
the Property. All references herein to "Property" shall include,
without limitation, any partial or undivided interests, underlying
ground leases, and/or any improvements or portions of space therein; all
references to "lease" shall include, without limitation, the sublease,
master lease, license, rental, possession, or any other agreement,
whether verbal or written, to use or occupy the Property; all references
to "Client" shall include, without limitation, any related person or
affiliated entity of Client, or any successor in interest to either
Client or any related or affiliated person or entity of Client; and all
references to "tenant" shall include, without limitation, any related
person or affiliated entity of such tenant, or any successor in interest
to either such tenant or any related or affiliated person or entity of
such tenant.
3. The term of this Agreement shall commence on February 10, 1998 ,
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and shall terminate on December 31, 1999 .
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4. Broker shall use good faith efforts to endeavor to procure one (1) or
more tenants for the Property, pursuant to the general Terms of Leasing
set forth on Exhibit "A" attached hereto. To this end, Broker may use
all reasonable professional practices including, without limitation,
associations and cooperation with other brokers and any multi-listing
organizations, mediums and the Internet. Broker may use reasonable
means to advertise the Property including placing one or more signs upon
the Property, preparing and distributing brochures, and placing
advertisements in local newspapers and trade journals. All advertising
and other expenses by Broker shall be reimbursable by Client to Broker
in addition to Broker's leasing commission. Such costs shall be payable
to Broker pursuant to Section 7 below; however, Client acknowledges that
such costs shall be payable to Broker whether or not any lease is
ultimately consummated. Notwithstanding the aforesaid, Broker reserves
the right to require Client to advance to Broker any anticipated
advertising or other out of pocket expenses to market the Property.
5. Client shall cooperate with Broker to effect all leases of the Property,
and shall immediately refer to Broker all offers and inquiries of anyone
interested in leasing the Property. Broker shall have access to the
Property at all reasonable times to show the Property to any cooperating
brokers, subagents and prospective tenants. All lease negotiations
shall be through Broker; however, Broker shall not have the authority to
execute any lease agreement or bind Client in any transaction.
6. Client and Broker shall market and offer the Property in compliance with
all applicable federal, state and municipal laws. Client shall disclose
to Broker all adverse material information regarding the Property
including, without limitation, all zoning, physical conditions, defects,
environmental, building equipment/systems, condemnation, structural and
substructural conditions and matters of the Property of which Client has
actual knowledge or which should be known to Client; and Client hereby
authorizes Broker to disclose such information to any cooperating
brokers, subagents and prospective tenants. Client shall indemnify,
defend and hold Broker harmless from all claims made by any tenant or
third person arising from any condition on the Property or Client's
failure to disclose any material information regarding the Property.
Client shall also hold Broker harmless for any theft or damage to the
Property caused by any persons other than Broker.
7. Client shall pay Broker a leasing commission pursuant to the Schedule of
Commissions attached hereto as Exhibit "A". Such commission shall be
deemed earned and shall be payable to Broker, along with all expenses
incurred by Broker, upon any of the following occurrences: (a) a tenant
is procured by Client, Broker or any third person, and such tenant
enters into a written lease with Client, or such tenant takes possession
of the Property under any verbal agreement with Client; (b) a ready,
willing and able tenant is procured by Client, Broker or any third
person upon the Terms of Leasing set forth on Exhibit "A", and Client
refuses to enter into a lease; (c) Client enters into any corporate,
partnership, joint venture or other business entity agreement with a
third person, the end result of which is that such person (or such
corporation, partnership, joint venture or other business entity) takes
possession of the Property; or (d) Client by whatever means removes the
Property from the market during the term of this Agreement.
8. Broker's leasing commission shall also be deemed earned and shall be
payable to Broker if within one hundred eighty (180) days after the
termination of this Agreement the Property is leased to (or negotiations
continue, resume, commence or thereafter result in the consummation of a
lease with) any person or entity, or any affiliate or successor in
interest to any person or entity, to whom the Property was submitted
during the term of this Agreement. Broker shall submit a list of all
known persons or entities to whom the Property was submitted within
fifteen (15) days after Client's request.
9. Broker is authorized to offer subagency and may cooperate with subagents
and other brokers in the marketing and leasing of the Property, and all
authorizations of Broker herein shall include such subagents and other
brokers. However, Client acknowledges and understands (and Missouri law
presumes) that, absent some other relationship established between
Client and any such other subagents or brokers, it is deemed that all
such other subagents and brokers working with a prospective tenant
represent that tenant; that any such other subagents or brokers showing
the Property may represent a prospective tenant; and that any such other
subagents or brokers working with a prospective tenant may be required
to disclose to such tenant any information given to them by Broker.
Broker shall be solely liable for all brokers fees payable to any other
subagents and brokers; provided, however, Broker shall not be required
to pay to such persons any monies unless and until Broker has received
the applicable leasing commission for the transaction.
10. In the event this Agreement must be enforced through litigation, the
non-prevailing party shall be liable for all costs and expenses,
including reasonable attorneys fees, of the prevailing party.
/X/ Client acknowledges that Client has read the "Duties and Obligations of
Limited Agency" on the reverse side of this form.
/X/ Client acknowledges that Client has read the "Disclosed Dual Agency"
provisions on the reverse side of this form.
/X/ Client acknowledges that Client has read the Missouri Real Estate
Commission "Broker Disclosure Form".
Xxxxxx, Inc. Client:
By: /s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx, Xx.
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Title: President Title: Chairman
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Date: February 10, 1998 Date: February 10, 1998
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LICENSEE REPRESENTING SELLER OR LANDLORD DUTIES AND OBLIGATIONS OF LIMITED
AGENCY AS ADAPTED FROM SECTION 339.730 RSMo
1. A licensee representing a seller or landlord as a seller's agent or a
landlord's agent shall be a limited agent with the following duties and
obligations:
(1) To perform the terms of the written agreement made with the
client;
(2) To exercise reasonable skill and care for the client;
(3) To promote the interests of the client with the utmost good faith,
loyalty, and fidelity, including:
(a) Seeking a price and terms which are acceptable to the
client, except that the licensee shall not be obligated to
seek additional offers to purchase property while the
property is subject to a contract for sale or to seek
additional offers to lease the property while the property
is subject to a lease or letter of intent to lease;
(b) Presenting all written offers to and from the client in a
timely manner regardless of whether the property is subject
to a contract for sale or lease or a letter of intent to
lease;
(c) Disclosing to the client all adverse material facts actually
known or that should have been known by the licensee; and
(d) Advising the client to obtain expert advice as to the
material matters about which the licensee knows but the
specifics of which are beyond the expertise of the licensee;
(4) To account in a timely manner for all money and property received;
(5) To comply with all requirements of sections 339.710 to 339.860
RSMo, subsection 2 of section 339.100 RSMo, and any rules and
regulations promulgated pursuant to those sections; and
(6) To comply with any applicable federal, state, and local laws,
rules, regulations, and ordinances, including fair housing and
civil rights statutes and regulations.
2. A licensee acting as a seller's or landlord's agent shall not disclose
any confidential information about the client unless disclosure is
required by statute, rule or regulation or failure to disclose the
information would constitute a misrepresentation or unless disclosure
is necessary to defend the affiliated licensee against an action of
wrongful conduct in an administrative or judicial proceeding or before a
professional committee. No cause of action shall arise against a
licensee acting as a seller's or landlord's agent for making any
required or permitted disclosure.
3. A licensee acting as a seller's or landlord's agent owes no duty or
obligation to a customer, except that a licensee shall disclose to any
customer all adverse material facts actually known or that should have
been known by the licensee. The adverse material facts may include
facts pertaining to:
(1) Environmental hazards affecting the property;
(2) The physical condition of the property;
(3) Material defects in the property;
(4) Material defects in the title to the property;
(5) Material limitation on the client's ability to perform under the
terms of the contract.
A seller's or landlord's agent owes no duty to conduct an independent
inspection of the property for the benefit of the customer and owes no
duty to independently verify the accuracy or completeness of any
statement made by the client or any independent inspector.
4. A seller's or landlord's agent may show alternative properties not owned
by the client to prospective buyers or tenants and may list competing
properties for sale or lease without breaching any duty or obligation to
the client.
5. A seller or landlord may agree in writing with a seller's or landlord's
agent that other designated brokers may be retained and compensated as
subagents. Any designated broker acting as a subagent on the seller's
or landlord's behalf shall be a limited agent with the obligations and
responsibilities set forth in subsections 1 to 4 of this section.
DISCLOSED DUAL AGENCY AS ADAPTED FROM SECTION 339.750 RSMo
1. A licensee may act as a dual agent only with the consent of all parties
to the transaction. Consent shall be presumed by a written agreement pursuant
to section 339.780 RSMo.
2. A dual agent shall be a limited agent for both the seller and buyer or
the landlord and tenant and shall have the duties and obligations required by
sections 339.730 and 339.740 RSMo unless otherwise provided for herein.
3. Except as provided in subsections 4 and 5 below, a dual agent may
disclose any information to one client that the licensee gains from the other
client if the information is material to the transaction unless it is
confidential information as defined in section 339.710 RSMo.
4. The following information shall not be disclosed by a dual agent without
the consent of the client to whom the information pertains:
(1) That a buyer or tenant is willing to pay more than the purchase
price or lease rate offered for the property;
(2) That a seller or landlord is willing to accept less than the
asking price or lease rate for the property;
(3) What the motivating factors are for any client buying, selling, or
leasing the property;
(4) That a client will agree to financing terms other than those
offered; and
(5) The terms of any prior offers or counter offers made by any party.
5. A dual agent shall not disclose to one client any confidential
information about the other client unless the disclosure is required by
statute, rule or regulation or failure to disclose the information would
constitute a misrepresentation or unless disclosure is necessary to defend the
affiliated licensee against an action of wrongful conduct in an administrative
or judicial proceeding or before a professional committee. No cause of action
or any person shall arise against a dual agent for making any required or
permitted disclosure. A dual agent does not terminate the dual agency
relationship by making any required or permitted disclosure.
6. In a dual agency relationship there shall be no imputation of knowledge
or information between the client and the dual agent or among persons within an
entity engaged as a dual agent.
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EXHIBIT "A"
TERMS OF LEASING AND SCHEDULE OF COMMISSIONS
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TERMS FOR LEASING: As agreed by owner.
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LEASING COMMISSIONS:
a. New leases and lease renewals
negotiated directly by Agent Commissions charged by Agent shall
not exceed the compensation
customarily charged in arm's length
transactions by others rendering
similar services as an ongoing
public activity in the same
geographical location. Such
leasing fees shall be payable upon
execution of a lease agreement by
both parties.
b. Outside Brokers When lease is negotiated in
conjunction with an outside broker
(the Cooperating Broker), Owner
will pay a commission equivalent to
one and one half (1-1/2) times the
rate schedule above to Xxxxxx, Inc.
directly. Xxxxxx, Inc. shall then
pay the Cooperating Broker its
share of said commission.
