<PAGE> 1
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 10-K
(Mark One)
(X) ANNUAL REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 (FEE REQUIRED)
For the fiscal year ended December 31, 1995
or
( ) TRANSITION REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 (NO FEE REQUIRED)
For the transition period from to
--------------------- ---------------------
Commission file number 0-18444
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Yager/Kuester Public Fund Limited Partnership
- -----------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
North Carolina 56-1560476
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
12201 Steele Creek Road, P.O. Box 412080
Charlotte, North Carolina 28241
- ---------------------------------------- ------------------------------------
(Address of principal offices) (Zip Code)
Registrant's telephone number, including area code: (704) 588-4074
--------------------------
Securities registered pursuant to Section 12(b) of the Act:
<TABLE>
<CAPTION>
Name of Each Exchange on
Title of Each Class Which Registered
- -------------------------------- ----------------------------------------
<S> <C>
None
- -------------------------------- ----------------------------------------
</TABLE>
Securities registered pursuant to Section 12(g) of the Act:
Limited Partnership Units
- -------------------------------------------------------------------------------
(Title of Class)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
--- ---
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to
this Form 10-K. [ ]
State the aggregate market value of the voting stock held by nonaffiliates of
the registrant. The aggregate market value shall be computed by reference to
the price at which the stock was sold, or the average bid and asked prices of
such stock, as of a specified date within 60 days prior to the date of filing.
Not Applicable.
Documents Incorporated By Reference
Exhibits (4) and (10.1) of Part IV, required by Item 601 of Regulation
S-K, are incorporated by reference from the prospectus of the registrant, dated
December 1, 1987, Registration Number 33-07056-A (hereinafter "Prospectus").
This document contains 39 pages. The Exhibit Index is located on page 22.
1
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PART I
Item 1. Business. The registrant is a North Carolina limited partnership
formed in July 1986 (hereinafter referred to as the "Partnership"). The
Partnership engaged in a "blind pool offering," the proceeds of which were used
to purchase income-producing real property. During the year ended December 31,
1988, the Partnership received the minimum investment required to remove
subscribers' funds from escrow. The Partnership's offering terminated with a
total subscription of $3,195,000 from investor limited partners. The net
proceeds were used to purchase the properties described in Item 2 below, to pay
the expenses of the offering and to fund the working capital account. The
funds not required for those purposes, totalling $84,273, were returned to
investors.
The sole business of the Partnership is the operation of commercial office
buildings purchased with the proceeds of the public offering. (See Item 2
below for a description of the properties.) During the year ended December 31,
1995, the occupancy of the United Carolina Bank Building was maintained at 100%
and the EastPark Executive Center facilities were maintained at 95% occupancy.
The lease terms with the major tenants at such properties are summarized below.
(i) EastPark Executive Center, Charlotte, NC - the General
Services Administrator ("GSA") has a lease term for a ten (10) year
period ending on October 31, 2004, at a rental rate of $14.15 per
square foot. GSA may, at its election, terminate the lease after eight
(8) years. The GSA leased premises include approximately 32,000 square
feet. The Partnership will, however, incur significant leasehold
improvements expense of approximately $1,000,000 for the GSA space.
Such improvements are currently scheduled to be completed sometime in
June 1996. Upon completion of the improvements, the GSA lease will
account for approximately 78% of the rental income related to the
EastPark Executive Center.
(ii) United Carolina Bank Building, Greenville, SC - Metropolitan
Life Insurance Company ("Metlife") is in the second year of a five year
lease renewal. The rental rate is $14.00 per square foot during the
first three years of the renewal term and escalates to $14.25 per
square foot during the last two years of the renewal term. In lieu of
granting an upfit allowance, Metlife was allowed a rent concession of
$6,250 per month for the first twelve (12) months of the renewal term;
the concession terminated July 31, 1995. Metlife and United Carolina
Bank ("UCB"), account for 68% and 21%, respectively, of the rental
income related to the United Carolina Bank Building. The UCB lease
(which currently provides for a $14.06 per square foot rental rate)
will expire on July 31, 1999.
The General Partners believe that, after engaging in significant (but
unsuccessful) efforts to sell the Properties on acceptable terms in 1995, it is
in the best interests of the Partnership to focus in 1996 on (i) completing the
GSA upfit project at the EastPark Executive Center and (ii) securing a
refinancing of the UCB Building debt. See Item 7 below for a discussion of
refinancing matters.
The Partnership has no employees of its own; management of the
Partnership's property is performed by Kuester Properties, Inc., an affiliate
of FSK Limited Partnership. Administration of the Partnership is performed by
the General Partners. (See Items 10 and 13 below.)
Item 2. Properties. On June 23, 1989, the Partnership purchased the
EastPark Executive Center, an office complex comprised of two buildings located
in Charlotte, North Carolina with net leasable area of 45,300 square feet, for
a purchase price of $3,155,138 of which $1,500,000 was provided by a first
mortgage loan bearing interest at 10.5% per annum and having a term of 10
years. The lender, United of Omaha Life Insurance Company ("United Omaha"), is
not affiliated with the Partnership.
On November 30, 1989, the Partnership acquired the United Carolina Bank
Building, a three-story office building in Greenville, South Carolina with net
leasable area of 39,138 square feet, for a purchase price of $4,202,544 of
which $3,110,000 was provided by a first mortgage loan from United Omaha,
bearing interest at 9.625% per annum and having a term of 7 years.
In connection with the office building purchases, $26,312 of acquisition
costs were capitalized.
No further purchases of real property are projected and no funds are
available for that purpose.
2
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Item 3. Legal Proceedings. The Partnership is not involved in any legal
proceedings and was not so involved during the year ended December 31, 1995.
Item 4. Submission of Matters to a Vote of Security Holders. Not
applicable.
PART II
Item 5. Market for the Partnership's Common Equity and Related
Stockholder Matters. There is no established public trading market for the
Partnership's securities. The Partnership has 535 limited partners. Cash
distributions made to the limited partners during the past years are set out in
the Statements of Cash Flow included in the Financial Statements included in
Part II, Item 8 of this Report.
Item 6. Selected Financial Data.
<TABLE>
<CAPTION>
At or For
Year Ended December 31,
-----------------------
1995 1994 1993 1992 1991
---------- ---------- ------------- ------------- ----------
<S> <C> <C> <C> <C> <C>
Summary of Operations
Rental income $1,172,935 $1,114,741 $1,067,859 $1,042,672 $1,092,848
Net income (loss) 29,787 17,865 (15,330) (49,816) (37,032)
Net income (loss)
per limited
partnership unit 4.63 2.77 (2.38) (7.74) (5.75)
Summary of Financial
Position:
Total assets $7,214,881 $6,951,442 $7,037,438 $7,107,578 $7,156,456
Long-term debt, less
current maturities 1,288,754 4,220,469 4,330,390 4,363,603 4,471,530
Distribution per
limited partner-
ship unit - - - - 12.51
Number of limited
partnership units 6,370 6,370 6,370 6,370 6,370
</TABLE>
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
Liquidity and Capital Resources
During the year ended December 31, 1995, the Partnership continued to fund
working capital requirements. The working capital deficiency increased from
($105,301) at December 31, 1994 to ($3,229,255) at December 31, 1995. The
decrease in the working capital is primarily a result of the reclassification
of the loan on the United Carolina Bank building to current liabilities from
long-term debt. The reclassification of the loan is due to the balloon payment
of approximately $2,817,000 that is due in December, 1996. The lender, United
of Omaha Life Insurance Company, has indicated its willingness to agree to a
loan refinancing upon satisfaction of certain terms and conditions. The
General Partners intend to finalize the definitive terms of such refinancing in
the near future.
An increase in current liabilities can also be attributed to an additional
$750,000 line-of-credit note payable by the Partnership for the EastPark
Executive Center GSA upfit, of which $219,783 was outstanding at December 31,
1995. This note is due on May 10, 1996. The General Partners intend to
increase the amount of such loan to $1,000,000 to cover substantially all of
the GSA upfit costs and to obtain a loan term extension.
3
<PAGE> 4
The cumulative unpaid priority return to the unit holders increased from
$1,438,481 at December 31, 1994 to $1,681,265 at December 31, 1995. This
increase resulted from no distributions being made to partners during the year
and the pro rata share due partners pursuant to the Limited Partnership
Agreement. Based on current and projected commercial real estate market
conditions, the General Partners believe that it is reasonably unlikely that a
sale of the Partnership properties would produce net sale proceeds sufficient
to pay the priority return. Furthermore, the General Partners believe that it
is reasonably unlikely that the Partnership's operating income or any
refinancing of Partnership debt would generate sufficient funds to pay the
priority return.
During the year ended December 31, 1995, the Partnership had net income of
$29,787 compared to the net income (loss) of $17,865 and ($15,330) in 1994 and
1993, respectively. Rental income, operating expenses, and interest expense
for the years ended December 31, 1995 and 1994 resulted exclusively from the
operations of the Partnership's commercial real estate properties. The
EastPark Executive Center buildings, purchased June 23, 1989, were 88% leased
at December 31, 1994 and were 95% leased at December 31, 1995. The United
Carolina Bank Building, purchased November 30, 1989, was 100% leased at
December 31, 1994 and 1995. In March 1996, the Partnership renewed a lease
with a tenant in the United Carolina Bank Building for a term of five years.
The new lease resulted in a reduction in space leased and rental paid by the
tenant, and, accordingly, the occupancy rate for the United Carolina Bank
Building will be reduced to 96% on or about April 1, 1996.
The rent concessions granted by the Partnership as a result of contract
renewal with a major tenant at the UCB Building decreased cash flow from rental
income by $43,750 during 1995. Rental concessions are being amortized over the
life of the lease in order to recognize rental revenue evenly. The Partnership
does not anticipate granting any additional rent concessions during 1996 at
either property.
The Partnership entered into a Loan Extension and Modification Agreement
dated as of May 12, 1993 with Internet Services Corporation, a North Carolina
corporation (formerly International Network Services Corporation) owned equally
by three trusts, the beneficial interests of which inure respectively to the
benefit of the three children of Dexter Yager, the sole General Partner of DRY
Limited Partnership, which limited partnership is one of the two general
partners of the Partnership. Pursuant to the Agreement, the Partnership agreed
to pay Internet $91,275 over a five-year period, with annual principal payments
of $18,255 each, together with interest at the rate equal to the prime rate of
NationsBank of North Carolina N.A., determined on an annual basis, plus two
percent (2.0%).
See Item 13 (Certain Relationships and Related Transactions) for a
discussion regarding leasing commissions paid to Kuester Properties, Inc., a
General Partner of the Partnership.
In the event that funds derived from operations are insufficient to meet
the Partnership's working capital needs, the General Partners have agreed to
fund the shortfall.
Results of Operations
Comparison of 1995 results with 1994.
Operating results increased slightly from an operating income of $438,454
during the year ended December 31, 1994 to an operating income of $444,916 for
the comparable year 1995. Operating income expressed as a percentage of rental
income decreased from 39.3% for the year ended December 31, 1994 to 37.9% for
the comparable year 1995. While the overall occupancy rate for 1995 was
comparable to 1994, rental income nevertheless increased by approximately
$58,000. This increase of rental income in 1995 can be attributed to having a
full year of the increased rental rates that were negotiated during the second
half of 1994. Operating expenses were higher overall in 1995 by approximately
$51,000. Increased professional fees, relating to the potential sale of the
properties, comprised the greatest increase in the expenses. The remaining
expense increase can be attributed to increased repairs, maintenance,
depreciation and amortization. Nonoperating income and expenses for the year
ended December 31, 1995 decreased 1.3% from the comparable year 1994.
Comparison of 1994 results with 1993.
Operating results increased from an operating income of $415,658 during
the year ended December 31, 1993 to an operating income of $438,454 for the
comparable year 1994. Operating income expressed as a percentage of rental
income increased from 38.9% for the year ended December 31, 1993 to 39.3% for
the comparable year 1994. While the overall
4
<PAGE> 5
occupancy rate was down slightly in 1994, the increase in rental rates due to
the renewals of leases more than offset the occupancy change, resulting in an
overall increase in rental income of approximately $47,000. Operating expenses
were higher overall in 1994 by approximately $24,000. While certain expenses
decreased or remained relatively consistent in 1994, contract labor and
amortization expense relating to deferred leasing commissions increased. These
expenses can be directly correlated to the increase in rental revenue.
Property taxes also increased between the years due to an appealed amount from
prior years being paid in 1994. Nonoperating income and expenses for the year
ended December 31, 1994 decreased 2.4% from the comparable year 1993.
Item 8. Financial Statements and Supplementary Data. The financial
statements are attached hereto.
5
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INDEPENDENT AUDITOR'S REPORT
To the Partners
Yager/Kuester Public Fund
Limited Partnership
Charlotte, North Carolina
We have audited the accompanying balance sheets of Yager/Kuester Public Fund
Limited Partnership as of December 31, 1995 and 1994, and the related
statements of operations, partners' equity and cash flows for each of the three
years in the period ended December 31, 1995. These financial statements are
the responsibility of the Partnership's management. Our responsibility is to
express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Yager/Kuester Public Fund
Limited Partnership as of December 31, 1995 and 1994, and the results of its
operations and its cash flows for each of the three years in the period ended
December 31, 1995, in conformity with generally accepted accounting principles.
As discussed in Notes 1 and 3 to the financial statements, the Partnership
changed its method of accounting for investment securities in 1994.
/s/ McGladrey & Pullen LLP
Charlotte, North Carolina
February 1, 1996
6
<PAGE> 7
YAGER/KUESTER PUBLIC FUND
LIMITED PARTNERSHIP
BALANCE SHEETS
December 31, 1995 and 1994
<TABLE>
<CAPTION>
ASSETS 1995 1994
- -----------------------------------------------------------------------------------------------------
<S> <C> <C>
Current Assets
Cash and cash equivalents (Note 2) $ 139,930 $ 107,906
Accounts receivable, tenant (Note 9) 37,565 45,604
Prepaid expenses 1,100 223
---------------------------
Total current assets 178,595 153,733
---------------------------
Investments and Noncurrent Receivables
Securities available for sale (Notes 3 and 4) 135,050 105,255
Properties on operating leases and properties held for
lease, net (Notes 5 and 6) 6,774,759 6,580,839
Accrued rent receivable 57,283 26,038
---------------------------
6,967,092 6,712,132
---------------------------
Other Assets
Deferred charges, net of accumulated
amortization 1995 $35,919; 1994 $29,977 10,180 16,123
Deferred leasing commissions, net of accumulated
amortization 1995 $18,721; 1994 $6,494 59,014 69,454
---------------------------
69,194 85,577
---------------------------
$7,214,881 $6,951,442
===========================
LIABILITIES AND PARTNERS' EQUITY
Current Liabilities
Note payable, bank (Note 6) $ 219,783 $ --
Current maturities of long-term debt (Note 6) 2,931,715 109,921
Accounts payable 128,472 12,879
Accrued expenses 127,880 136,234
---------------------------
Total current liabilities 3,407,850 259,034
---------------------------
Long-Term Debt, less current maturities (Note 6) 1,288,754 4,220,469
---------------------------
Commitment and Contingency (Notes 7 and 10)
Partners' Equity
General partners 1,795 1,497
Limited partners (Note 7) 2,505,236 2,475,747
Unrealized gain (loss) on investment securities (Note 4) 11,246 (5,305)
---------------------------
2,518,277 2,471,939
---------------------------
$7,214,881 $6,951,442
===========================
</TABLE>
See Notes to Financial Statements.
7
<PAGE> 8
YAGER/KUESTER PUBLIC FUND
LIMITED PARTNERSHIP
STATEMENTS OF OPERATIONS
Years Ended December 31, 1995, 1994 and 1993
<TABLE>
<CAPTION>
1995 1994 1993
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Rental income (Notes 5 and 9) $1,172,935 $1,114,741 $1,067,859
----------------------------------------------
Operating expenses:
Contract labor 40,307 33,690 26,240
Depreciation and amortization 179,987 173,606 166,596
Repairs and maintenance 133,822 125,585 122,698
Management fees (Note 8) 50,981 50,471 55,810
Utilities 149,027 154,259 155,392
Professional fees 57,331 22,696 24,762
Property taxes 88,046 92,677 80,943
Miscellaneous 28,518 23,303 19,760
----------------------------------------------
728,019 676,287 652,201
----------------------------------------------
Operating income 444,916 438,454 415,658
----------------------------------------------
Nonoperating income (expense):
Interest income 724 4,360 1,312
Interest expense (422,066) (432,683) (437,865)
Other 6,213 7,734 5,565
----------------------------------------------
(415,129) (420,589) (430,988)
----------------------------------------------
Net income (loss) 29,787 17,865 (15,330)
Deduct net income (loss) applicable to limited
partners (per limited partner unit) 1995 $4.63;
1994 $2.77; 1993 $(2.38) 29,489 17,685 (15,176)
----------------------------------------------
Net income (loss) applicable to
general partners (per limited
partner unit) 1995 $.05 1994 $.03;
1993 $(.03) $ 298 $ 180 $ (154)
===============================================
</TABLE>
See Notes to Financial Statements.
8
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YAGER/KUESTER PUBLIC FUND
LIMITED PARTNERSHIP
STATEMENTS OF PARTNERS' EQUITY
Years Ended December 31, 1995, 1994 and 1993
<TABLE>
<CAPTION>
Net unrealized
Gain (Loss) on
Securities
General Limited Available
Partners Partners For Sale Total
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Balance, December 31, 1992 $1,471 $2,473,238 $ -- $2,474,709
Net loss (154) (15,176) -- (15,330)
-----------------------------------------------------------
Balance, December 31, 1993 1,317 2,458,062 -- 2,459,379
Net income 180 17,685 -- 17,865
January 1, 1994 adoption of FASB
Statement No. 115 (Note 3) -- -- 1,811 1,811
Change in fair market value on
securities available for sale
(Note 4) -- -- (7,116) (7,116)
-----------------------------------------------------------
Balance, December 31, 1994 1,497 2,475,747 (5,305) 2,471,939
Net income 298 29,489 -- 29,787
Change in fair market value on
securities available for sale
(Note 4) -- -- 16,551 16,551
-----------------------------------------------------------
Balance, December 31, 1995 $1,795 $2,505,236 $11,246 $2,518,277
===========================================================
</TABLE>
See Notes to Financial Statements.
9
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YAGER/KUESTER PUBLIC FUND
LIMITED PARTNERSHIP
STATEMENTS OF CASH FLOWS
Years Ended December 31, 1995, 1994 and 1993
<TABLE>
<CAPTION>
1995 1994 1993
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Cash Flows From Operating Activities
Net income (loss) $ 29,787 $ 17,865 $ (15,330)
Adjustments to reconcile net income (loss) to
net cash provided by operating activities:
Depreciation 162,035 161,169 160,653
Amortization 17,952 12,437 5,943
Net realized losses on sale of securities
available for sale 3,940 -- --
Changes in assets and liabilities:
(Increase) decrease in accounts
receivable, tenant and accrued rent
receivable (23,206) (37,353) 5,586
Increase (decrease) in:
Accounts payable and accrued
expenses 107,238 2,664 14,274
Other prepaids and accruals, net (877) 1,691 (244)
---------------------------------------------
Net cash provided by operating
activities 296,869 158,473 170,882
---------------------------------------------
Cash Flows From Investing Activities
Purchase of marketable equity securities -- -- (29,558)
Purchase of securities available for sale (193,803) (29,570) --
Proceeds from sale of securities available for sale 176,620 -- --
Purchase of investment property (355,955) (34,989) (4,285)
Disbursements for deferred leasing
commissions (1,569) (75,948) --
---------------------------------------------
Net cash used in investing activities (374,707) (140,507) (33,843)
---------------------------------------------
Cash Flows Used In Financing Activities
Principal payments on long-term borrowings (109,921) (101,219) (64,083)
Proceeds from note payable 219,783 -- --
Net cash provided by (used in)
financing activities 109,862 (101,219) (64,083)
---------------------------------------------
Net increase (decrease) in cash and
cash equivalents 32,024 (83,253) 72,956
Cash and cash equivalents:
Beginning 107,906 191,159 118,203
---------------------------------------------
Ending $ 139,930 $ 107,906 $ 191,159
=============================================
</TABLE>
10
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YAGER/KUESTER PUBLIC FUND
LIMITED PARTNERSHIP
STATEMENTS OF CASH FLOWS (CONTINUED)
YEARS ENDED DECEMBER 31, 1995, 1994 AND 1993
<TABLE>
<CAPTION>
1995 1994 1993
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Supplemental Schedule of Noncash Investing
Information
Cash payment for interest $423,197 $433,719 $440,132
Supplemental Schedule of Noncash Investing
Activities
Marketable equity securities transferred to
securities available for sale -- 80,990 --
Net unrealized gain (loss) on securities available
for sale 16,551 (5,305) --
</TABLE>
See Notes to Financial Statements.
11
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YAGER/KUESTER PUBLIC FUND
LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS
NOTE 1. NATURE OF BUSINESS AND ORGANIZATION, PARTNERSHIP AGREEMENT AND
SIGNIFICANT ACCOUNTING POLICIES
Nature of business and organization: The Partnership is a North Carolina
limited partnership formed in July 1986. The purpose of the Partnership is to
acquire, operate, hold for investment and sell property. Properties currently
held are located in Charlotte, North Carolina and Greenville, South Carolina.
The general partners of the Partnership are DRY Limited Partnership, a North
Carolina limited partnership in which Dexter R. Yager, Sr. is the general
partner and FSK Limited Partnership, a North Carolina limited partnership in
which Faison S. Kuester, Jr. is the general partner.
Partnership agreement: Under the terms of the partnership agreement, all
taxable income, tax losses and cash distributions from operations are to be
allocated 99% to the limited partners and 1% to the general partners until the
limited partners receive a return of their initial capital contributions and a
"Priority Return". The Priority Return is a sum equal to 8% per annum
cumulative, but not compounded, (prorated for any partial year) of the adjusted
capital contributions of the limited partners, calculated from the last day of
the calendar quarter in which each limited partner is admitted to the
Partnership to the date of payment. Thereafter, taxable income, tax losses and
cash distributions from operations will be allocated 75% to the limited
partners and 25% to the general partners.
Upon the sale or refinancing of any future partnership properties, the
partnership agreement specifies certain allocations of net proceeds and taxable
gain or loss from the transaction.
A summary of the Partnership's significant accounting policies follows:
Use of management's estimates: The preparation of financial statements in
conformity with generally accepted accounting principles requires management to
make estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those estimates.
Cash and cash equivalents: For purposes of reporting the statements of cash
flows, the Partnership includes all cash accounts, which are not subject to
withdrawal restrictions or penalties, and all highly liquid debt instruments
purchased with an original maturity of three months or less as cash and cash
equivalents on the accompanying balance sheets. At various times throughout
the year, the Partnership may have cash balances at financial institutions
which exceed federally-insured amounts.
Investments: Properties on operating leases and properties held for lease are
stated at the lower of cost less accumulated depreciation or fair market value.
Depreciation is computed by the straight-line method over 40 years for
buildings and over 15 years for building improvements.
Investment in marketable equity securities, securities available for sale and
accounting change: Prior to January 1, 1994, the Partnership had investments
in marketable equity securities. Marketable equity securities consisted of
mutual funds and corporate equity securities.
12
<PAGE> 13
YAGER/KUESTER PUBLIC FUND
LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
NOTE 1. NATURE OF BUSINESS AND ORGANIZATION, PARTNERSHIP AGREEMENT AND
SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
The Partnership adopted the provisions of FASB Statement No. 115, Accounting
for Certain Investments in Debt and Equity Securities, as of January 1, 1994.
Statement No. 115 requires that management determine the appropriate
classification of securities at the date of adoption, and thereafter at the
date individual investment securities are acquired, and that the
appropriateness of such classification be reassessed at each balance sheet
date. Since the Partnership neither buys securities in anticipation of
short-term fluctuations in market prices or can commit to holding debt
securities to their maturities, the investment in debt and marketable equity
securities have been classified as available for sale in accordance with
Statement No. 115. Available for sale securities are stated at fair value, and
unrealized holding gains and losses are reported as a separate component of
partners' equity.
Prior to the adoption of Statement No. 115, the Partnership stated its
marketable equity securities at the lower of their aggregate cost or market,
with unrealized losses charged to a separate component of partners' equity.
Under both the newly adopted accounting standard and the Partnership's former
accounting practices, dividends on marketable equity securities are recognized
and included in income when declared. Realized gains and losses, including
losses from declines in value of specific securities determined by management
to be other-than-temporary, are included in income. Realized gains and losses
are determined on the basis of the specific securities sold.
Note 3 to the financial statements provides further information about the
effect of adopting Statement No. 115.
Deferred charges: Deferred charges are related to prepaid fees which are
amortized over the length of the related loans, 7 to 10 years, on a
straight-line basis.
Deferred leasing commissions: Deferred leasing commissions related to
obtaining specific leases are amortized using the straight-line method over the
noncancelable lease terms which range from three to eight years.
Revenue recognition: Rental revenue is recognized evenly over the term of the
lease. In connection with negotiating and obtaining leases, the Partnership's
management may at times grant concessions, such as free rent for a specific
number of months during the lease. These costs are amortized over the life of
the lease.
Disclosures about the fair value of financial instruments: Financial Accounting
Standards Board Statement No. 107, Disclosures About Fair Value of Financial
Instruments, requires disclosure of fair value information about financial
instruments, whether or not recognized in the balance sheet, for which it is
practicable to estimate that value. Statement 107 excludes certain financial
instruments and all nonfinancial instruments from its disclosure requirements.
At December 31, 1995 the carrying values of the Partnership's financial
instruments, including accounts receivable which are due on demand and the
mortgage payable which bears interest at market rates, approximate their fair
values.
Income taxes: Under current income tax laws, income or loss of the Partnership
is included in the income tax returns of the partners. Accordingly, the
Partnership will make no provision for federal or state income taxes.
13
<PAGE> 14
YAGER/KUESTER PUBLIC FUND
LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
NOTE 2. WORKING CAPITAL RESERVE
Per the Partnership Agreement, a minimum cash and cash equivalents reserve of
$94,500 must be maintained to fund any expenditures that the cash flow
generated from properties on operating leases is insufficient to meet. At
December 31, 1995 and 1994, the Partnership exceeded the minimum requirement by
$45,430 and $13,406, respectively.
NOTE 3. ACCOUNTING CHANGE
As discussed in Note 1, the Partnership adopted FASB Statement No. 115 as of
January 1, 1994. In accordance with Statement No. 115, the 1993 comparative
financial statements have not been restated for the change in accounting
principle. There was no effect to net income in 1994 for adopting Statement
No. 115. The January 1, 1994 balance of partners' equity was increased by
$1,811 to recognize the net unrealized holding gain on securities at that date.
NOTE 4. SECURITIES AVAILABLE FOR SALE
The following is a summary of the Partnership's securities available for sale
as of December 31, 1995 and 1994:
<TABLE>
<CAPTION>
Gross Gross
Unrealized Unrealized
Cost Gains Losses Fair Value
-------------------------------------------------------------
1995
-------------------------------------------------------------
<S> <C> <C> <C> <C>
Securities available for sale:
Common stock $108,800 $11,100 $ -- $119,900
Corporate bonds and notes 15,004 146 -- 15,150
-------------------------------------------------------------
$123,804 $11,246 $ -- $135,050
=============================================================
1994
-------------------------------------------------------------
Securities available for sale:
Common stock $ 25,000 $ 1,125 $ -- $ 26,125
Mutual fund 85,560 -- 6,430 79,130
-------------------------------------------------------------
$110,560 $ 1,125 $6,430 $105,255
=============================================================
</TABLE>
As of December 31, 1995, the Partnership did not have trading or held to
maturity securities.
A summary of investment earnings included in nonoperating income (expense) in
the accompanying Statements of Operations for the years ended December 31,
1995, 1994 and 1993 is as follows:
<TABLE>
<CAPTION>
1995 1994 1993
------------------------------------------
<S> <C> <C> <C>
Realized gains on sale of securities available for sale $ 1,805 $ -- $ --
Realized (losses) on sale of securities available for sale (5,745)
------------------------------------------
$(3,940) $ -- $ --
==========================================
</TABLE>
14
<PAGE> 15
YAGER/KUESTER PUBLIC FUND
LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
NOTE 4. SECURITIES AVAILABLE FOR SALE (CONTINUED)
Proceeds from sales of securities available for sale during the years ended
December 31, 1995, 1994 and 1993 are as follows:
<TABLE>
<CAPTION>
1995 1994 1993
-------------------------------------------
<S> <C> <C> <C>
Proceeds from sales of securities available for sale $176,620 $ -- $ --
===========================================
</TABLE>
Dividend income included in nonoperating income (expense) in the accompanying
Statements of Operations totaled $7,778, $4,821 and $4,861 for the years ended
December 31, 1995, 1994 and 1993, respectively.
The changes in the net unrealized gain (loss) on securities available for sale
during the years ended December 31, 1995 and 1994 were $16,551 and $(5,305),
respectively, which have been included in the separate component of partners'
equity.
NOTE 5. PROPERTIES ON OPERTING LEASES AND PROPERTIES HELD FOR LEASE
The Partnership leases office facilities under various lease agreements. The
following schedule provides an analysis of the Partnership's investment in
properties held for lease by major classes as of December 31, 1995 and 1994,
respectively.
<TABLE>
<CAPTION>
1995 1994
-----------------------------
<S> <C> <C>
Land $1,168,953 $1,168,953
Building 6,188,729 6,188,729
Building improvements 476,272 120,317
-----------------------------
7,833,954 7,477,999
Less accumulated depreciation 1,059,195 897,160
-----------------------------
$6,774,759 $6,580,839
=============================
</TABLE>
The following is a schedule by years of all minimum future rentals on
noncancelable operating leases as of December 31, 1995:
<TABLE>
<CAPTION>
Year Ending
December 31, Amount
- ----------------------------------------------------------------------------
<S> <C>
1996 $1,081,880
1997 1,072,125
1998 964,067
1999 735,760
2000 450,778
Thereafter 826,472
----------
$5,131,082
==========
</TABLE>
15
<PAGE> 16
YAGER/KUESTER PUBLIC FUND
LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
NOTE 6. NOTE PAYABLE, BANK, LONG-TERM DEBT AND PLEDGED ASSETS
The Partnership has a $750,000 line-of-credit with an outstanding balance of
$219,783 at December 31, 1995 which allows borrowings and repayments to be made
on a daily basis. Outstanding balances on the line-of-credit bear interest at a
variable rate tied to the bank's prime rate (prime rate was 8.5% at December
31, 1995). The line-of-credit is unsecured and expires on May 10, 1996. The
Partnership did not have a line-of-credit available to it at December 31, 1994.
Long-term debt and pledged assets consists of the following at December 31,
1995:
<TABLE>
<S> <C>
Note payable to United of Omaha, due in monthly installments of $14,976,
including interest at 10.5%, through June 1999, with $1,115,064 due in
July 1999, collateralized by mortgage on land and building $1,297,832
Note payable to United of Omaha, due in monthly installments of $27,443,
including interest at 9.625%, through November 1996, with $2,817,027
due in December 1996, collateralized by mortgage on land and building 2,867,872
Note payable to Internet Services Corporation, related through common
ownership, due in five annual principal installments of $18,255, plus
interest at the prime rate (8.50% at December 31, 1995) of
NationsBank of North Carolina, N.A., plus 2%, unsecured, due
January 1998 54,765
----------
4,220,469
Less current maturities 2,931,715
----------
$1,288,754
==========
</TABLE>
Future maturities of long-term debt are as follows:
<TABLE>
<CAPTION>
Year Ending
December 31, Amount
- --------------------------------------------------------------------------------------------
<S> <C>
1996 $2,931,715
1997 68,868
1998 74,445
1999 1,145,441
----------
$4,220,469
==========
</TABLE>
Interest expense to Internet Services Corporation, for the years ended December
31, 1995, 1994 and 1993 was $5,476, $5,842, and $8,048, respectively.
NOTE 7. PRIORITY RETURN
The cumulative unpaid priority return to the limited partners is $1,681,265 and
$1,438,481 at December 31, 1995 and 1994, respectively. There were no cash
distributions to the limited partners for the priority return for the years
ended December 31, 1995, 1994 and 1993.
16
<PAGE> 17
YAGER/KUESTER PUBLIC FUND
LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
NOTE 8. MANAGEMENT AND ADMINISTRATION EXPENSES
Management expenses paid to a General Partner and to Internet Services
Corporation in connection with day-to-day operations of the Partnership
amounted to $50,981, $50,471, and $55,810 for the years ended December 31,
1995, 1994 and 1993, respectively.
NOTE 9. MAJOR TENANTS
Rental income for the years ended December 31, 1995, 1994 and 1993,
respectively, included approximate rentals from the following major tenants
each of which accounted for 10% or more of the total rental income of the
Partnership for those years:
<TABLE>
<CAPTION>
Approximate Amount of Rental Income
Year Ended December 31,
-------------------------------------------
1995 1994 1993
-------------------------------------------
<S> <C> <C> <C>
Tenant A $451,000 $347,000 $362,000
Tenant B 306,000 310,000 335,000
Tenant C 138,000 132,000 127,000
</TABLE>
Accounts receivable from each of the major tenants identified above were as
follows at December 31, 1995 and 1994, respectively:
<TABLE>
<CAPTION>
December 31,
------------------------
1995 1994
------------------------
<S> <C> <C>
Tenant A $37,565 $45,604
Tenant B -- --
Tenant C -- --
</TABLE>
NOTE 10. COMMITMENT
As of December 31, 1995, the Partnership committed to a major tenant that
upfitting specified in the lease agreement will be completed during 1996.
Management estimates that the total cost of the upfitting will be approximately
$1,000,000. At December 31, 1995, the partnership has incurred approximately
$350,000 in upfitting costs which are included in building improvements.
17
<PAGE> 18
Item 9. Changes in and Disagreements With Accountants on Accounting and
Financial Disclosure. Not applicable.
PART III
Item 10. Directors and Executive Officers of the Partnership. The
Partnership has no executive officers and directors. The General Partners of
the partnership are DRY Limited Partnership, the sole General Partner of which
is Dexter R. Yager, Sr., and FSK Limited Partnership, the sole General Partner
of which is Faison S. Kuester, Jr.
Following is a brief discussion of the background and experience of
Messrs. Kuester and Yager.
Faison S. Kuester, Jr., 50, graduated from the University of North
Carolina at Chapel Hill with a Bachelor of Arts Degree in History in 1967. He
is a resident of Charlotte, North Carolina. After two years service in the
United States Army as a Second Lieutenant, Mr. Kuester joined Independence
Development Corporation in 1972 serving as a director of leasing and management
for a period of three years. In 1974, Mr. Kuester formed his own company,
Kuester Realty and Management, in order to lease and manage commercial
properties in Charlotte, North Carolina and surrounding communities. In
addition to leasing and managing various commercial properties, Kuester Realty
had developed two medical clinics in the Charlotte area. In 1980, Kuester
Properties, Inc. ("KPI") was formed to specialize in on-site management of
apartment communities in the southeastern United States. The following year
Cauble and Kuester Company, Inc. was organized to lease and manage commercial
properties in the metropolitan Atlanta area. This partnership brought together
Cauble and Company, experienced mortgage lenders and leasing agents in the
Atlanta market, and Kuester Realty and Management. Finally, in 1983, Kuester
Development Corporation was formed to allow the Kuester companies to engage in
selective real estate development projects in the southeastern United States.
Through Kuester Development Corporation, a wholly-owned subsidiary of KPI,
Mr. Kuester has been directly involved with the development of several
commercial real estate properties in North and South Carolina and Georgia.
These include the First United National Bank Building in Wilmington, North
Carolina, two retail office showroom projects, two medical office buildings and
residential condominiums in Charlotte, North Carolina, an office building in
Savannah, Georgia, and an office building in Greenville, South Carolina.
Kuester Development Corporation also has developed over 700 apartment units
throughout Charlotte, North Carolina since 1983. KPI is active in the
management of these units as well as managing other clients' multifamily
developments throughout the Carolinas.
In 1989, Mr. Kuester, Jr. established Kuester Hospitality Corporation for
the purpose of acquiring and managing health care facilities. In 1995, he
established Kuester HealthCare Services, Inc. ("KHCS") to offer various health
care services, including development and brokerage of health care facilities.
Two assisted living facilities totalling 100 beds are currently under KHCS
management. KHCS is currently involved in the development of a 70-bed facility
with plans to begin construction in July, 1996. KHCS will be the manager after
completion.
KPI serves as property manager of the Partnership property.
Dexter R. Yager, Sr., 56, is the President and founder of D&B Yager
Enterprises, Inc., Mr. Yager's Amway distributorship business. Through D&B
Yager Enterprises, Inc., Mr. Yager has been an independent distributor for
Amway Corporation for over 30 years during which time he has achieved the
status of Crown Ambassador, which is the highest level attainable as an Amway
distributor. The Amway Corporation is one of the largest manufacturers of home
care products in the world. He is also a former member and past president of
the Amway Distributor Association Board of Directors. Mr. Yager has many other
family-owned businesses and is responsible for the development of several
businesses, including the following: Yager Personal Development, Inc., which
handles Mr. Yager's services as a speaker at Amway events, Yager Construction
Company, Inc., which is a general building contractor; and Dexter and Birdie
Yager Family Limited Partnership, which owns various real estate investments
and manages real estate for the Yager family.
Mr. Yager has significant experience in real estate investment for his own
account. Mr. Yager personally, and through partnerships in which he and his
wife own a majority interest, has made investments in raw land, office
buildings, a shopping center, and other commercial and residential real estate
having a market value in excess of $10,000,000. He has made substantial
additional real estate investments through partnerships in which he does not
own a majority interest.
18
<PAGE> 19
Section 16(a) of the Securities Exchange Act of 1934 requires the
Partnership's general partners, officers and holders of more than 10% of the
Partnership's Partnership units to file with the Securities and Exchange
Commission initial reports of ownership and reports of changes in ownership of
Partnership units and any other equity securities of the Partnership. To the
Partnership's knowledge, based solely upon review of the forms, reports and
certificates filed with the Partnership by such persons, all such Section 16(a)
filing requirements were complied with by such persons in 1995, except as
follows:
Jerry R. Haynes - One Form 3 initial report of ownership was filed late.
Item 11. Executive Compensation. The Partnership does not employ any
executive officers or directors and no compensation is paid to any person for
performing services typically provided by such an officer or director. Dexter
R. Yager, Sr. and Faison S. Kuester have policymaking functions with regard to
Partnership operations. See Item 10 for the relationship of such persons to
the Partnership. See Item 13 for a description of payments made to Kuester
Properties, Inc. for property management services and to Internet Services
Corporation, Inc. for bookkeeping and accounting services.
Item 12. Security Ownership of Certain Beneficial Owners and Management.
The General Partners initially contributed a total of $2,500 to the capital of
the Partnership, consisting of a $1,600 contribution from DRY Limited
Partnership and $900 from FSK Limited Partnership. The General Partners own a
1% interest in all items of Partnership income, gain, loss, deductions or
credits including 1% of net cash from operations. The General Partners also
own a residual 25% interest in net cash from a sale or refinancing of the
Partnership Property, subordinated to the receipt by the Limited Partners of
the return of their capital contributions and their priority return and to the
payment of any subordinated real estate commissions due to affiliates of the
General Partners.
The General Partners do not own any Limited Partnership interest in the
Partnership.
Item 13. Certain Relationships and Related Transactions. During the
fiscal year ended December 31, 1995, Kuester Properties, Inc. received
management fees of $45,981 for management of the Partnership property.
Internet Services Corporation, Inc. received $5,000 for providing
accounting/bookkeeping services. See Item 7 for a description of a loan to the
Partnership by Internet Services Corporation, a corporation owned equally by
three trusts, the beneficial interests of which inure to the benefit of three
children of Dexter R. Yager, Sr., the sole General Partner of DRY Limited
Partnership, which limited partnership is one of the two general partners of
the Partnership. Janitorial services for the EastPark Executive Center are
provided by Marquis Cleaning Services, which is operated and owned by Dexter R.
Yager's nephew.
The General Partners believe that the terms for the above mentioned
services are as favorable as those the Partnership might have obtained from
unaffiliated parties.
PART IV
Item 14. Exhibits, Financial Statements Schedules and Reports on Form
8-K.
(a)(1) The following financial statements of the Partnership are included
in Part II, Item 8 hereof.
(i) Independent Auditor's Report
(ii) Balance Sheets as of December 31, 1995 and 1994
(iii) Statements of Operations for years ended
December 31, 1995, 1994 and 1993
(iv) Statements of Partners' Equity for years ended
December 31, 1995, 1994 and 1993
(v) Statements of Cash Flows for years ended December 31, 1995,
1994 and 1993
(vi) Notes to Financial Statements
(a)(2) All schedules have been omitted because they are
inapplicable, not required, or the information is included
elsewhere in the financial statements or notes thereto.
(a)(3) Exhibits:
(4) Instrument defining rights of securities holders -
set forth in the Limited Partnership Agreement which is
contained in the Prospectus incorporated herein by
reference.
19
<PAGE> 20
(10.1) Limited Partnership Agreement - contained in
Prospectus incorporated herein by reference.
(10.2) Exclusive Leasing and Management Agreement dated October
1, 1994 (EastPark Executive Center).
(10.3) Exclusive Leasing and Management Agreement
dated October 1, 1994 (United Carolina Bank Building).
(23) Consent of Independent Auditor
(27) Financial Data Schedule (for SEC use only)
(b) Reports on Form 8-K: None.
(c) Exhibits: The exhibits listed in Item
14(a)(3) above and not incorporated herein by reference are
filed with this Form 10-K.
(d) Financial Statement Schedules: There are no
financial statement schedules included in this Form 10-K
report.
20
<PAGE> 21
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Partnership has duly caused this report to be signed
on its behalf by the undersigned thereunto duly authorized.
YAGER/KUESTER PUBLIC FUND
LIMITED PARTNERSHIP
By: FSK Limited Partnership
March 27, 1996 By: /s/ Faison S. Kuester, Jr.
----------------------------------
Faison S. Kuester, Jr.
General Partner
(Principal Executive Officer)
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below on March 27, 1996 by the following persons on
behalf of the Partnership and in the capacities and on the dates indicated.
/s/ Alison L. Hawk /s/ Faison S. Kuester
- ------------------------------ ----------------------------------------
Alison L. Hawk, Controller Faison S. Kuester, Jr., General
(Principal Accounting Officer) Partner of FSK Limited Partnership,
General Partner of the Partnership
Date March 27, 1996 Date March 27, 1996
------------------------ ----------------------------------
/s/ Dexter R. Yager, Sr.
----------------------------------------
Dexter R. Yager, Sr., General
Partner of DRY Limited Partnership,
General Partner of the Partnership
Date March 27, 1996
----------------------------------
21
<PAGE> 22
EXHIBIT INDEX
The following documents are included in this Form 10-K as an Exhibit:
<TABLE>
<CAPTION>
Designation
Number Under
Exhibit Item 601 of Page
Number Regulation S-K Exhibit Description Number
- ------ -------------- ------------------- ------
<S> <C> <C> <C>
1* (4) Limited Partnership Agreement
2* (10.1) Limited Partnership Agreement
Exclusive Leasing and
Management Agreement dated
October 1, 1994 - (EastPark
3 (10.2) Executive Center) 23
4 (10.3) Exclusive Leasing and 31
Management Agreement dated
October 1, 1994 - (United
Carolina Bank building)
5 (23) Consent of Independent Auditor 39
(27) Financial Data Schedule (for
SEC use only)
</TABLE>
* Incorporated by reference to Exhibit A of the Partnership's Prospectus
dated December 1, 1987, Registration Number 33-07056-A.
22
<PAGE> 1
EXHIBIT 10.2
EXCLUSIVE LEASING
AND
MANAGEMENT AGREEMENT
This EXCLUSIVE LEASING AND MANAGEMENT AGREEMENT (the "Agreement") is made
and entered into this 1st day of October, 1994, by and between KUESTER
PROPERTIES, INC. (hereinafter referred to as "Agent"), and YAGER KUESTER PUBLIC
FUND LIMITED PARTNERSHIP (hereinafter referred to as "Owner").
Owner is the owner of a tract of real property and improvements, including
a one-story office building containing approximately 45,300 square feet of
rentable space and a paved and lighted parking area, the real property and
improvements being known and designated as Eastpark Executive Center being
located at 6623-6635 Executive Circle, Charlotte, Mecklenburg County, North
Carolina 28212 (hereinafter referred to as the "Premises").
Owner wishes to employ Agent to render professional services in the
leasing, operation, and management of the Premises.
In consideration of the mutual covenants, conditions, and promises set
forth herein, Owner and Agent agree as follows:
1. Appointment of Agent. Owner hereby appoints Agent as its exclusive
agent to lease, manage, operate and maintain the Premises in accordance with
the terms of this Agreement.
2. Term of Appointment. This Agreement shall become effective as of the
date of this Agreement, and shall continue in full force and effect until
December 31, 1995. Thereafter, the term of this Agreement shall continue and
be extended, without notice or any further action by either of the parties, for
consecutive periods of one (1) year each unless either Owner or Agent shall, by
written notice given to the other party at least thirty (30) days prior to the
expiration of the original term or the then existing extension term thereof,
cancel this Agreement.
Notwithstanding the above, either Owner or Agent shall have the express
right to terminate this Agreement for any reason at any time upon the giving of
at least sixty (60) days written notice to the other party of said terminating
party's intent to terminate the Agreement (the "Termination Notice"). In the
event such Termination Notice is given, this Agreement shall terminate on the
date specified in such Termination Notice, but not less than sixty (60) days
from the date of said Termination Notice.
3. Duties of Agent. Agent agrees to lease, operate and manage the
Premises on the terms provided herein for and on behalf of Owner and to perform
the following duties in connection with the lease, operation and management of
the Premises:
1
<PAGE> 2
3.1 Budgets. Agent will prepare and submit to Owner a proposed budget for
the next calendar year following the date of this Agreement, showing estimated
monthly gross receipts and disbursements. Thereafter, during the term of each
calendar year of this agreement, Agent shall prepare and submit a budget for on
or before November 1 of each year for the following calendar year. When
approved by Owner, Agent shall implement such budgets and shall be authorized,
without any further approval by Owner, to make the expenditures and incur the
obligations provided for in such budgets. In the event Owner fails to notify
Agent of Owner's approval or disapproval of a budget within thirty (30) days
following the submission of such budget by Agent, the budget shall be deemed
approved by Owner in the form submitted until otherwise agreed to by Owner and
Agent.
3.2 Reports. Agent will render a monthly statement of receipts,
disbursements and charges to Owner to the attention of the following person(s)
at the address(es) shown:
Name Address
----------------- -----------------------------
Jeffrey L. Eggert Internet Services Corporation
P. O. Box 412080
Charlotte, North Carolina 28241-8834
3.3 Maintenance and Repairs. Agent shall at Owner's expense maintain the
Premises in accordance with the obligations of Owner to tenants of the Premises
as set forth in the leases entered into by and between Owner and such tenants
and shall make or cause to be made such ordinary repairs to the Premises as
Agent shall deem necessary and proper. All such maintenance and repairs shall
be at the sole cost and expense of Owner and may be deducted by Agent from the
gross revenues derived from the operation of the Premises. In the event
disbursements by Agent for such maintenance and repairs exceed gross revenues,
Owner shall promptly reimburse Agent for such excess on demand. Nothing herein
shall require Agent to advance its own funds for such maintenance and repairs.
Agent's duties shall not include the obligation to repair damage to the
Premises caused by fire, wind, flood or other casualty if the cost of such
repairs exceeds the sum of $1,000. In the event that Agent hereafter agrees to
supervise any such repairs in excess of the sum of $1,000, Agent shall be
compensated for such supervision as provided in Paragraph 5 hereof.
3.4 Collection of Monies. Agent will take all proper and necessary action
to enforce leases with tenants of the Premises and to collect rent and other
charges due from such tenants. No provision hereof shall constitute a
guarantee by Agent of the payment of rent or of the performance of any other
obligation by any tenant of the Premises. All monies collected by Agent on
behalf of Owner shall be deposited in Agent's trust account as described below.
2
<PAGE> 3
3.5 Accounting Records. Agent shall maintain in a manner consistent with
good accounting practices a system of books and records in to which shall be
entered each financial transaction with respect to the operation of the
Premises. Owner shall have access to such records during Agent's regular
office hours, and Owner's accountant shall have the right to audit such books
and records. The records maintained by Agent shall include (1) operation
budgets, (2) statements of monthly operations, (3) record of budget to actual
expenditures, both monthly and year-to-date, (4) variance reports, and (5)
monthly income statements.
3.6 Trust Account. Agent shall deposit all funds collected from tenants
or other sources with respect to the leasing, operation, and management of the
Premises in a trust account, separate from Agent's personal accounts. The
trust account may be used by Agent for operation and maintenance of the
Premises. All monies deposited by Agent from time to time shall be deemed to
be trust funds and shall be and remain the property of Owner and shall be
disbursed by Agent for the account of Owner only as permitted by this
Agreement. Agent may endorse any and all checks drawn to the order of Owner
for deposit in the trust account. Owner shall at its expense cause a
reasonable reserve of not less than $1,500 to be maintained in Agent's trust
account at all times for payment of anticipated operating expenses.
3.7 Fidelity Insurance. Agent shall procure fidelity insurance coverage
in an amount determined by Agent conditioned upon the performance of Agent's
duties and the due accounting for all funds received or collected by Agent for
Owner and for other clients of Agent. Owner shall be named as an insured under
such fidelity insurance policy.
3.8 Leasing. Agent shall perform on behalf of Owner all services
necessary for the leasing of space in the Premises to tenants including:
preparing rental rates; preparing lease documents; procuring and investigating
prospective tenants; conducting preliminary negotiations and preparing and
obtaining execution by prospective tenants of all proposed leases.
3.9 Advertising. Agent shall be responsible for marketing and advertising
the Premises during the term of this Agreement, including preparation of rental
signs and other forms of advertising.
Agent shall have no responsibility to perform any of the duties stipulated
herein requiring payment of monies in excess of the balance of the Agent's
trust account described in Paragraph 3.6 hereof. Owner agrees that should
Agent make expenditures in excess of such balance performing its duties, Owner
shall promptly
3
<PAGE> 4
reimburse Agent. Owner agrees to provide sufficient funds to
Agent such that all amounts due and owing in connection with the operation of
the Premises and the performance of Agent's duties hereunder may be promptly
paid by Agent. Owner agrees to provide such funds as are necessary for the
maintenance of the reserve in Agent's trust account.
4. Agent's Authority. Owner hereby grants to Agent the power and
authority necessary and reasonable to carry out the duties of Agent under this
Agreement. Such authority shall include, without limitation, the following:
4.1 Expenditures. Agent shall have the power and authority to make such
expenditures as are provided for in the budget approved by Owner in accordance
with Paragraph 3.1 hereof, and to make such further expenditures as are
necessary to carry out its duties hereunder including payment to Agent of its
compensation pursuant to paragraph 5 hereof. The approval of Owner shall be
required for expenditure of an amount in excess of $3,000 for any one item not
set forth in such approved budget except for emergency repairs if in the
opinion of Agent such repairs are necessary to protect the Premises from damage
or to maintain services to tenants.
4.2 Contracts for Utilities and Other Services. Agent shall have the
power and authority to make contracts on behalf of Owner and at Owner's expense
for electricity, vermin extermination, trash collection, security, water,
sewer, ad valorem tax service and any other utilities and operating services as
are required under leases between Owner and tenants of the Premises, or as
Agent shall reasonably deem necessary in the operation and maintenance of the
Premises; provided that such contracts are terminable with thirty (30) days
written notice by either party, or otherwise agreed to in writing by Owner.
4.3 Lease Agreements. Agent shall have the power and authority to enter
into lease agreements on behalf of Owner as principal, and to institute and
prosecute actions for the enforcement thereof, to terminate tenancies for
cause, and to sue for and in the name of Owner to recover rents and other sums
due.
4.4 Employees. Agent shall have the right and duly investigate, hire, pay
supervise and discharge all personnel necessary to be employed by it in order
to maintain and operate the Premises, including without limitation a property
manager at the Premises. Such personnel shall be deemed agents or employees as
the case may be of Agent and not of Owner if such persons or agents are
employees of some party to this Agreement. Owner shall have no right to
supervise or direct such agents or employees. Agent shall have the right to
determine all salaries, wages and other compensation of personnel employed by
Agent hereunder; provided, that such salaries and wages are within the limits
contained in the
4
<PAGE> 5
approved budget. Agent shall be reimbursed by Owner for all wages, fringe
benefits, payroll taxes, union welfare and pension costs and worker's
compensation premiums paid by Agent to its employees or independent contractors
to the extent their services are attributable to the maintenance and operation
of the Premises, and to the extent such payments are included in the approved
budget submitted by Agent.
5. Compensation
5.1 Management. Owner shall pay Agent as compensation for management
services rendered hereunder $1,500 per month or four percent (4%) of the
monthly gross receipts from the operation of the Premises during the term of
this Agreement, whichever is the greater amount. Gross receipts are all
amounts received from the operation of the Premises, including, but not limited
to, rents, parking fees, forfeited security deposits, and other fees.
5.2 Leasing. Owner shall pay Agent as compensation for leasing services
rendered hereunder four percent (4%) of the total gross rental payments payable
by tenants during the initial term of leases procured by Agent, provided, if
another broker or leasing agent participates in the negotiation or procuring of
a lease, the commission payable to Agent with respect to such lease shall be
six percent (6%) of the total gross rental payments payable during the initial
term of any such lease. Any additional compensation as if such lease were by a
new tenant. The leasing commissions determined as set forth above shall be due
and payable in full on execution of the lease.
Owner shall pay Agent additional compensation equal to two percent (2%)
of the gross rental payments payable by the tenant pursuant to any new lease
with an existing tenant procured by Agent, or any extension or renewal of a
lease by an existing tenant procured by Agent. All such commissions shall be
due and payable in full upon execution of the new lease, extension or renewal,
as applicable. On a tenant's exercise of any renewal option clause in a lease,
Agent shall receive a leasing commission on the same basis as if such exercise
were a renewal lease.
Agent's right to receive and the obligation by Owner to pay leasing
commissions shall survive any termination of this Agreement.
5.3 Fire or Casualty Restoration. Agent's duties shall not include the
obligation to repair damage to the Premises caused by fire, wind, flood, or
other casualty if the cost of such repairs exceeds the sum of $1,000. However,
if Agent hereafter agrees to supervise such repairs at Owner's request, Owner
shall pay Agent as additional compensation for supervising such repairs an
amount equal to ten percent (10%) of the gross expenses of repair.
5
<PAGE> 6
5.4 Renovation. Owner shall pay Agent as compensation for supervising any
capital improvement, renovation or rehabilitation approved by Owner an amount
equal to ten percent (10%) of the gross expenses incurred in any such capital
improvement, renovation or rehabilitation; provided that Owner requests that
Agent supervise and manage such renovations.
6. Relationship of Agent to Owner. Agent and Owner agree that Agent's
relationship to Owner is that of an independent contractor, that Agent is not
an employee of Owner, and that Agent and Owner are not partners or joint
venturers.
7. Indemnification. Owner agrees to indemnify and hold harmless Agent,
its representatives, agents and employees from any claim, loss, expense or
liability, including reasonable attorney's fees of counsel selected by Owner,
arising out of or in connection with the good faith performance of Agent's
duties under this Agreement or in connection with the Premises, except for
damage resulting from Agent's negligence or willful acts. Agent agrees to
indemnify and hold Owner, its representatives, agents and employees, harmless
from any claim, loss, expense or liability arising out of Agent's negligence or
willful acts.
8. Termination. If either Owner or Agent terminates this Agreement, Agent
shall within sixty (60) days: (a) surrender and deliver up to Owner all
security deposits (with a complete accounting for such deposits), rents and
other charges collected from tenants of the Premises, and any other monies of
Owner which are on hand or in any bank account maintained by Agent after
payment of any expenses as authorized in this Agreement, including but not
limited to outstanding obligations of the Owner contracted for in the Agent's
name; (b) deliver to Owner as received any monies due to Owner under this
Agreement, but received after such termination; (c) deliver to Owner all
materials and supplies, fees, contracts and documents and such other
accountings, papers and records pertaining to this Agreement as Owner shall
reasonably request; and (d) assign such existing contracts relating to the
operation and maintenance of the Premises as Owner shall require, providing
that owner shall agree to assume all liability thereunder accruing after the
termination of this Agreement. Within sixty (60) days after such termination,
Agent shall further deliver to Owner all income and expense reports not covered
by an existing report as of the time of termination. Agent shall be entitled
to receive all compensation earned through the date of termination within sixty
(60) days after termination. Upon such termination, neither party shall have
any further or continuing liability to the other party.
9. Office. Owner agrees to provide, equip and maintain at Owner's expense
a suitable office in the Premises for the use of Agent in the discharge of
Agent's duties.
6
<PAGE> 7
10. Signs. Owner hereby grants Agent the right to display signs in and
upon the Premises stating that the Premises are under Agent's management.
11. Compliance with Applicable Laws. Agent assumes no responsibility for
compliance of the Premises or any equipment therein with any statute,
ordinance, law, or regulation except to forward to the Owner promptly any
complaints, warnings, notices, or summons received by it relating to such
matters. Owner represents that to the best of its knowledge the Premises and
such equipment comply with all requirements and agrees to indemnify and hold
harmless Agent, its representatives, agents, and employees from all loss, cost,
expense, and liability whatsoever which may be imposed on them by reason of any
violation or alleged violation of such laws, ordinances, statutes, or
regulations relating to the Premises.
In the event it is alleged or charged by any governmental authority that
the Premises or any equipment therein or any act or failure to act by the Owner
with respect to the Premises violates any statute, ordinance, law, or
regulation or any order or ruling of any public authority or official, and
Agent, Agent shall have the right to terminate this Agreement by ten (10) days
prior written notice to Owner. Such termination shall not affect any liability
or obligation of Owner to Agent for any payment, reimbursement, or other sum of
money due and payable to Agent hereunder.
12. Insurance. Throughout the term of this Agreement, Owner shall at its
expense carry and maintain upon and with respect to the Premises: general
public liability insurance including blanket contractual liability coverage
(without exclusion for bodily injury to any employee of any contractor or
subcontractor) with limits of liability of not less than $500,000 per person
and $500,000 per occurrence for injury to persons including deaths resulting
therefrom and $100,000 per occurrence for damage to property; fire and extended
coverage insurance including endorsements for burglary, theft, vandalism and
malicious mischief and plate glass; and such other insurance as shall be
necessary and proper in connection with the operation and maintenance of the
Premises. All premiums for said policies shall be paid by Owner. Each such
policy shall name Agent as an additional insured thereunder. Owner agrees to
provide Agent with a certificate of insurance or a policy of insurance
reflecting such coverages, upon request by Agent. Unless Owner shall provide
such insurance and furnish such certificates within thirty (30) days from the
date of this Agreement, Agent may, but shall not be obligated to, obtain such
insurance and charge the cost thereof to the account of Owner. Owner and Agent
agree to notify each other promptly of any notification received by either
Agent or Owner concerning a change in status or claim upon any such policy.
7
<PAGE> 8
13. Miscellaneous.
13.1 Successors and Assigns. This Agreement shall be binding upon the
parties hereto, their legal representatives, successors and assigns.
13.2 Governing Law. This Agreement shall be construed in accordance with
the laws of the State of North Carolina.
13.3 Notice. All notices provided for or allowed by this Agreement shall
be in writing and shall be deemed to be given when sent by registered or
certified mail, postage prepaid, return receipt requested (a) to Agent at 711
East Morehead Street, Charlotte, North Carolina 28202, and (b) to Owner at
Internet Services Corporation, Post Office Box 412080, Charlotte, North
Carolina 28241-8834. Agent and Owner may from time to time by notice as
herein provided designate a different address to which notices to it shall be
sent.
13.4 Entire Agreement; Amendment. This Agreement constitutes the entire
agreement of Owner and Agent with respect to the leasing and management of the
Premises. Neither this Agreement nor any provision hereof may be changed
except by the instrument in writing signed by the party against whom
enforcement of the change is sought. This Agreement terminates, replaces and
supersedes and renders null and void any and all prior agreements between the
parties.
IN WITNESS WHEREOF, Agent and Owner have caused this Agreement to be
executed as of the day and year first above written,
AGENT:
ATTEST: KUESTER PROPERTIES, INC., a North
Carolina corporation
/s/ Alice B. Lundgren
- --------------------- /s/ Faison S. Kuester, Jr.
Assistant Secretary -------------------------------------------
Faison S. Kuester, Jr., President
[CORPORATE SEAL]
OWNER:
YAGER KUESTER PUBLIC FUND LIMITED
PARTNERSHIP, a North Carolina limited
partnership
By: /s/ Faison S. Kuester, Jr. (SEAL)
---------------------------------------
Faison S. Kuester, Jr., GENERAL PARTNER
By: /s/ Dexter R. Yager, Sr. (SEAL)
---------------------------------------
Dexter R. Yager, Sr., GENERAL PARTNER
8
<PAGE> 1
EXHIBIT 10.3
EXCLUSIVE LEASING
AND
MANAGEMENT AGREEMENT
This EXCLUSIVE LEASING AND MANAGEMENT AGREEMENT (the "Agreement") is made
and entered into this 1st day of October, 1994, by and between KUESTER
PROPERTIES, INC. (hereinafter referred to as "Agent"), and YAGER KUESTER PUBLIC
FUND LIMITED PARTNERSHIP (hereinafter referred to as "Owner").
Owner is the owner of a tract of real property and improvements, including
a two-story office building containing approximately 39,000 square feet of
rentable space and a paved and lighted parking area, the real property and
improvements being known and designated as United Carolina Bank Building being
located at 770 Pelham Road, Greenville, Greenville County, South Carolina
(hereinafter referred to as the "Premises").
Owner wishes to employ Agent to render professional services in the
leasing, operation, and management of the Premises.
In consideration of the mutual covenants, conditions, and promises set
forth herein, Owner and Agent agree as follows:
1. Appointment of Agent. Owner hereby appoints Agent as its exclusive
agent to lease, manage, operate and maintain the Premises in accordance with
the terms of this Agreement.
2. Term of Appointment. This Agreement shall become effective as of the
date of this Agreement, and shall continue in full force and effect until
December 31, 1995. Thereafter, the term of this Agreement shall continue and
be extended, without notice or any further action by either of the parties, for
consecutive periods of one (1) year each unless either Owner or Agent shall, by
written notice given to the other party at least thirty (30) days prior to the
expiration of the original term or the then existing extension term thereof,
cancel this Agreement.
Notwithstanding the above, either Owner or Agent shall have the express
right to terminate this Agreement for any reason at any time upon the giving of
at least sixty (60) days written notice to the other party of said terminating
party's intent to terminate the Agreement (the "Termination Notice"). In the
event such Termination Notice is given, this Agreement shall terminate on the
date specified in such Termination Notice, but not less than sixty (60) days
from the date of said Termination Notice.
3. Duties of Agent. Agent agrees to lease, operate and manage the
Premises on the terms provided herein for and on behalf of Owner and to
perform the following duties in connection with the lease, operation and
management of the Premises:
1
<PAGE> 2
3.1 Budgets. Agent will prepare and submit to Owner a proposed budget for
the next calendar year following the date of this Agreement, showing estimated
monthly gross receipts and disbursements. Thereafter, during the term of each
calendar year of this agreement, Agent shall prepare and submit a budget for on
or before November 1 of each year for the following calendar year. When
approved by Owner, Agent shall implement such budgets and shall be authorized,
without any further approval by Owner, to make the expenditures and incur the
obligations provided for in such budgets. In the event Owner fails to notify
Agent of Owner's approval or disapproval of a budget within thirty (30) days
following the submission of such budget by Agent, the budget shall be deemed
approved by Owner in the form submitted until otherwise agreed to by Owner and
Agent.
3.2 Reports. Agent will render a monthly statement of receipts,
disbursements and charges to Owner to the attention of the following person(s)
at the address(es) shown:
Name Address
----------------- -----------------------------
Jeffrey L. Eggert Internet Services Corporation
P. O. Box 412080
Charlotte, North Carolina 28241-8834
3.3 Maintenance and Repairs. Agent shall at Owner's expense maintain the
Premises in accordance with the obligations of Owner to tenants of the Premises
as set forth in the leases entered into by and between Owner and such tenants
and shall make or cause to be made such ordinary repairs to the Premises as
Agent shall deem necessary and proper. All such maintenance and repairs shall
be at the sole cost and expense of Owner and may be deducted by Agent from the
gross revenues derived from the operation of the Premises. In the event
disbursements by Agent for such maintenance and repairs exceed gross revenues,
Owner shall promptly reimburse Agent for such excess on demand. Nothing herein
shall require Agent to advance its own funds for such maintenance and repairs.
Agent's duties shall not include the obligation to repair damage to the
Premises caused by fire, wind, flood or other casualty if the cost of such
repairs exceeds the sum of $1,000. In the event that Agent hereafter agrees to
supervise any such repairs in excess of the sum of $1,000, Agent shall be
compensated for such supervision as provided in Paragraph 5 hereof.
3.4 Collection of Monies. Agent will take all proper and necessary action
to enforce leases with tenants of the Premises and to collect rent and other
charges due from such tenants. No provision hereof shall constitute a
guarantee by Agent of the payment of rent or of the performance of any other
obligation by any tenant of the Premises. All monies collected by Agent on
behalf of Owner shall be deposited in Agent's trust account as described below.
2
<PAGE> 3
3.5 Accounting Records. Agent shall maintain in a manner consistent with
good accounting practices a system of books and records in to which shall be
entered each financial transaction with respect to the operation of the
Premises. Owner shall have access to such records during Agent's regular
office hours, and Owner's accountant shall have the right to audit such books
and records. The records maintained by Agent shall include (1) operation
budgets, (2) statements of monthly operations, (3) record of budget to actual
expenditures, both monthly and year-to-date, (4) variance reports, and (5)
monthly income statements.
3.6 Trust Account. Agent shall deposit all funds collected from tenants
or other sources with respect to the leasing, operation, and management of the
Premises in a trust account, separate from Agent's personal accounts. The
trust account may be used by Agent for operation and maintenance of the
Premises. All monies deposited by Agent from time to time shall be deemed to
be trust funds and shall be and remain the property of Owner and shall be
disbursed by Agent for the account of Owner only as permitted by this
Agreement. Agent may endorse any and all checks drawn to the order of Owner
for deposit in the trust account. Owner shall at its expense cause a
reasonable reserve of not less than $1,500 to be maintained in Agent's trust
account at all times for payment of anticipated operating expenses.
3.7 Fidelity Insurance. Agent shall procure fidelity insurance coverage
in an amount determined by Agent conditioned upon the performance of Agent's
duties and the due accounting for all funds received or collected by Agent for
Owner and for other clients of Agent. Owner shall be named as an insured under
such fidelity insurance policy.
3.8 Leasing. Agent shall perform on behalf of Owner all services
necessary for the leasing of space in the Premises to tenants including:
preparing rental rates; preparing lease documents; procuring and investigating
prospective tenants; conducting preliminary negotiations and preparing and
obtaining execution by prospective tenants of all proposed leases.
3.9 Advertising. Agent shall be responsible for marketing and advertising
the Premises during the term of this Agreement, including preparation of rental
signs and other forms of advertising.
Agent shall have no responsibility to perform any of the duties stipulated
herein requiring payment of monies in excess of the balance of the Agent's
trust account described in Paragraph 3.6 hereof. Owner agrees that should
Agent make expenditures in excess of such balance performing its duties, Owner
shall promptly
3
<PAGE> 4
reimburse Agent. Owner agrees to provide sufficient funds to Agent such that
all amounts due and owing in connection with the operation of the Premises and
the performance of Agent's duties hereunder may be promptly paid by Agent.
Owner agrees to provide such funds as are necessary for the maintenance of the
reserve in Agent's trust account.
4. Agent's Authority. Owner hereby grants to Agent the power and
authority necessary and reasonable to carry out the duties of Agent under this
Agreement. Such authority shall include, without limitation, the following:
4.1 Expenditures. Agent shall have the power and authority to make such
expenditures as are provided for in the budget approved by Owner in accordance
with Paragraph 3.1 hereof, and to make such further expenditures as are
necessary to carry out its duties hereunder including payment to Agent of its
compensation pursuant to paragraph 5 hereof. The approval of Owner shall be
required for expenditure of an amount in excess of $3,000 for any one item not
set forth in such approved budget except for emergency repairs if in the
opinion of Agent such repairs are necessary to protect the Premises from damage
or to maintain services to tenants.
4.2 Contracts for Utilities and Other Services. Agent shall have the
power and authority to make contracts on behalf of Owner and at Owner's expense
for electricity, vermin extermination, trash collection, security, water,
sewer, ad valorem tax service and any other utilities and operating services as
are required under leases between Owner and tenants of the Premises, or as
Agent shall reasonably deem necessary in the operation and maintenance of the
Premises; provided that such contracts are terminable with thirty (30) days
written notice by either party, or otherwise agreed to in writing by Owner.
4.3 Lease Agreements. Agent shall have the power and authority to enter
into lease agreements on behalf of Owner as principal, and to institute and
prosecute actions for the enforcement thereof, to terminate tenancies for
cause, and to sue for and in the name of Owner to recover rents and other sums
due.
4.4 Employees. Agent shall have the right and duly investigate, hire, pay
supervise and discharge all personnel necessary to be employed by it in order
to maintain and operate the Premises, including without limitation a property
manager at the Premises. Such personnel shall be deemed agents or employees as
the case may be of Agent and not of Owner if such persons or agents are
employees of some party to this Agreement. Owner shall have no right to
supervise or direct such agents or employees. Agent shall have the right to
determine all salaries, wages and other compensation of personnel employed by
Agent hereunder; provided, that such salaries and wages are within the limits
contained in the
4
<PAGE> 5
approved budget. Agent shall be reimbursed by Owner for all wages, fringe
benefits, payroll taxes, union welfare and pension costs and worker's
compensation premiums paid by Agent to its employees or independent contractors
to the extent their services are attributable to the maintenance and operation
of the Premises, and to the extent such payments are included in the approved
budget submitted by Agent.
5. Compensation.
5.1 Management. Owner shall pay Agent as compensation for management
services rendered hereunder $1,500 per month or four percent (4%) of the
monthly gross receipts from the operation of the Premises during the term of
this Agreement, whichever is the greater amount. Gross receipts are all
amounts received from the operation of the Premises, including, but not limited
to, rents, parking fees, forfeited security deposits, and other fees.
5.2 Leasing. Owner shall pay Agent as compensation for leasing services
rendered hereunder four percent (4%) of the total gross rental payments payable
by tenants during the initial term of leases procured by Agent, provided, if
another broker or leasing agent participates in the negotiation or procuring of
a lease, the commission payable to Agent with respect to such lease shall be
six percent (6%) of the total gross rental payments payable during the initial
term of any such lease. Any additional compensation as if such lease were by a
new tenant. The leasing commissions determined as set forth above shall be due
and payable in full on execution of the lease.
Owner shall pay Agent additional compensation equal to two percent (2%)
of the gross rental payments payable by the tenant pursuant to any new lease
with an existing tenant procured by Agent, or any extension or renewal of a
lease by an existing tenant procured by Agent. All such commissions shall be
due and payable in full upon execution of the new lease, extension or renewal,
as applicable. On a tenant's exercise of any renewal option clause in a lease,
Agent shall receive a leasing commission on the same basis as if such exercise
were a renewal lease.
Agent's right to receive and the obligation by Owner to pay leasing
commissions shall survive any termination of this Agreement.
5.3 Fire or Casualty Restoration. Agent's duties shall not include the
obligation to repair damage to the Premises caused by fire, wind, flood, or
other casualty if the cost of such repairs exceeds the sum of $1,000. However,
if Agent hereafter agrees to supervise such repairs at Owner's request, Owner
shall pay Agent as additional compensation for supervising such repairs an
amount equal to ten percent (10%) of the gross expenses of repair.
5
<PAGE> 6
5.4 Renovation. Owner shall pay Agent as compensation for supervising any
capital improvement, renovation or rehabilitation approved by Owner an amount
equal to ten percent (10%) of the gross expenses incurred in any such capital
improvement, renovation or rehabilitation; provided that Owner requests that
Agent supervise and manage such renovations.
6. Relationship of Agent to Owner. Agent and Owner agree that Agent's
relationship to Owner is that of an independent contractor, that Agent is not
an employee of Owner, and that Agent and Owner are not partners or joint
venturers.
7. Indemnification. Owner agrees to indemnify and hold harmless Agent,
its representatives, agents and employees from any claim, loss, expense or
liability, including reasonable attorney's fees of counsel selected by Owner,
arising out of or in connection with the good faith performance of Agent's
duties under this Agreement or in connection with the Premises, except for
damage resulting from Agent's negligence or willful acts. Agent agrees to
indemnify and hold Owner, its representatives, agents and employees, harmless
from any claim, loss, expense or liability arising out of Agent's negligence or
willful acts.
8. Termination. If either Owner or Agent terminates this Agreement, Agent
shall within sixty (60) days: (a) surrender and deliver up to Owner all
security deposits (with a complete accounting for such deposits), rents and
other charges collected from tenants of the Premises, and any other monies of
Owner which are on hand or in any bank account maintained by Agent after
payment of any expenses as authorized in this Agreement, including but not
limited to outstanding obligations of the Owner contracted for in the Agent's
name; (b) deliver to Owner as received any monies due to Owner under this
Agreement, but received after such termination; (c) deliver to Owner all
materials and supplies, fees, contracts and documents and such other
accountings, papers and records pertaining to this Agreement as Owner shall
reasonably request; and (d) assign such existing contracts relating to the
operation and maintenance of the Premises as Owner shall require, providing
that owner shall agree to assume all liability thereunder accruing after the
termination of this Agreement. Within sixty (60) days after such termination,
Agent shall further deliver to Owner all income and expense reports not covered
by an existing report as of the time of termination. Agent shall be entitled
to receive all compensation earned through the date of termination within sixty
(60) days after termination. Upon such termination, neither party shall have
any further or continuing liability to the other party.
9. Office. Owner agrees to provide, equip and maintain at Owner's expense
a suitable office in the Premises for the use of Agent in the discharge of
Agent's duties.
6
<PAGE> 7
10. Signs. Owner hereby grants Agent the right to display signs in and
upon the Premises stating that the Premises are under Agent's management.
11. Compliance with Applicable Laws. Agent assumes no responsibility for
compliance of the Premises or any equipment therein with any statute,
ordinance, law, or regulation except to forward to the Owner promptly any
complaints, warnings, notices, or summons received by it relating to such
matters. Owner represents that to the best of its knowledge the Premises and
such equipment comply with all requirements and agrees to indemnify and hold
harmless Agent, its representatives, agents, and employees from all loss, cost,
expense, and liability whatsoever which may be imposed on them by reason of any
violation or alleged violation of such laws, ordinances, statutes, or
regulations relating to the Premises.
In the event it is alleged or charged by any governmental authority that
the Premises or any equipment therein or any act or failure to act by the Owner
with respect to the Premises violates any statute, ordinance, law, or
regulation or any order or ruling of any public authority or official, and
Agent, Agent shall have the right to terminate this Agreement by ten (10) days
prior written notice to Owner. Such termination shall not affect any liability
or obligation of Owner to Agent for any payment, reimbursement, or other sum of
money due and payable to Agent hereunder.
12. Insurance. Throughout the term of this Agreement, Owner shall at its
expense carry and maintain upon and with respect to the Premises: general
public liability insurance including blanket contractual liability coverage
(without exclusion for bodily injury to any employee of any contractor or
subcontractor) with limits of liability of not less than $500,000 per person
and $500,000 per occurrence for injury to persons including deaths resulting
therefrom and $100,000 per occurrence for damage to property; fire and extended
coverage insurance including endorsements for burglary, theft, vandalism and
malicious mischief and plate glass; and such other insurance as shall be
necessary and proper in connection with the operation and maintenance of the
Premises. All premiums for said policies shall be paid by Owner. Each such
policy shall name Agent as an additional insured thereunder. Owner agrees to
provide Agent with a certificate of insurance or a policy of insurance
reflecting such coverages, upon request by Agent. Unless Owner shall provide
such insurance and furnish such certificates within thirty (30) days from the
date of this Agreement, Agent may, but shall not be obligated to, obtain such
insurance and charge the cost thereof to the account of Owner. Owner and Agent
agree to notify each other promptly of any notification received by either
Agent or Owner concerning a change in status or claim upon any such policy.
7
<PAGE> 8
13. Miscellaneous.
13.1 Successors and Assigns. This Agreement shall be binding upon the
parties hereto, their legal representatives, successors and assigns.
13.2 Governing Law. This Agreement shall be construed in accordance
with the laws of the State of North Carolina.
13.3 Notice. All notices provided for or allowed by this Agreement
shall be in writing and shall be deemed to be given when sent by registered
or certified mail, postage prepaid, return receipt requested (a) to Agent at
711 East Morehead Street, Charlotte, North Carolina 28202, and (b) to Owner
at Internet Services Corporation, Post Office Box 412080, Charlotte, North
Carolina 28241-8834. Agent and Owner may from time to time by notice as
herein provided designate a different address to which notices to it shall
be sent.
13.4 Entire Agreement; Amendment. This Agreement constitutes the
entire agreement of Owner and Agent with respect to the leasing and management
of the Premises. Neither this Agreement nor any provision hereof may be changed
except by the instrument in writing signed by the party against whom
enforcement of the change is sought. This Agreement terminates, replaces and
supersedes and renders null and void any and all prior agreements between the
parties.
IN WITNESS WHEREOF, Agent and Owner have caused this Agreement to be
executed as of the day and year first above written,
AGENT:
ATTEST: KUESTER PROPERTIES, INC., a North
Carolina corporation
/s/ Alice B. Lundren
- -------------------- /s/ Faison S. Kuester, Jr.
Assistant Secretary -------------------------------------------
Faison S. Kuester, Jr., President
[CORPORATE SEAL]
OWNER:
YAGER-KUESTER PUBLIC FUND LIMITED
PARTNERSHIP, a North Carolina limited
partnership
By: /s/ Faison S. Kuester, Jr. (SEAL)
---------------------------------------
Faison S. Kuester, Jr., GENERAL PARTNER
By: /s/ Dexter R. Yager, Sr. (SEAL)
---------------------------------------
Dexter R. Yager, Sr., GENERAL PARTNER
8
<PAGE> 1
EXHIBIT 23
CONSENT OF INDEPENDENT AUDITOR
We hereby consent to the incorporation by reference in the December 1, 1987
Prospectus (Registration No. 33-07056-A) of our report, dated February 1, 1996,
on the financial statements of Yager/Kuester Public Fund Limited Partnership,
which appears on page 6 of this annual report on Form 10-K for the year ended
December 31, 1995 and to the reference to our Firm under the caption "Experts"
in such Prospectus.
/s/ McGladrey & Pullen, LLP
Charlotte, North Carolina
March 27, 1996
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