THIS AGREEMENT is made and entered into this day of , 20 , by and
between , hereinafter referred to as the “Owner”, and
, hereinafter referred to as the “Agent”.
WITNESSETH:
WHEREAS, the Agent holds all licenses required to perform the services
herein agreed to be performed and maintains an office, properly equipped
and staffed by employees suitable to render the services contracted for
herein; and
WHEREAS, the Owner desires to employ the Agent to sell the property of the
Owner, hereinafter referred to as the “Property”, as described in Exhibit
“A” which is attached hereto and made a part hereof by reference; and
WHEREAS, the Agent desires to accept such employment and to use his best
efforts to find purchasers for the Owner’s property;
NOW, THEREFORE, in consideration of the covenants and agreements contained
herein, the Owner and Agent agree as follows:
1. All “WHEREAS” clauses set out hereinabove are hereinafter incorporated
by reference.
2. The Owner represents and warrants that he is the exclusive owner of the
Property and that he has good right and lawful authority to sell and convey
said Property, and that said Property is free of encumbrances and not
subject to limitation of any kind.
3. In consideration of the Agreement of the Agent to list and use its best
efforts to find purchasers for the Property of the Owner, and the further
Agreement of the Agent to advertise the Property, the Owner hereby gives
the Agent the exclusive right to sell the property at the price and upon
the terms as are set out in Exhibit “B”, attached hereto and made a part
hereof by reference, or at any lower price and upon such different terms as
may be hereinafter accepted by the Owner, without regard to the race,
creed, color or place of national origin of any purchaser.
4. The term of this Agreement shall be years, beginning on the date
and execution hereof by both parties, and ending on the day of , 19 ,
unless extended by the parties.
5. The Owner agrees that interest on encumbrances, taxes, insurance, and
rents, if applicable, shall be prorated at the time of closing and all
existing liens shall be paid by the Owner, prior to or at the time of
closing.
6. The Owner hereby represents and warrants that the Property description,
attached hereto as Exhibit “A”, is correct and the Owner agrees to
indemnify and hold the Agent and any and all others relying thereon,
harmless as to any errors therein.
7. In the event that the Agent finds a purchaser for the Property, the
usual and customary procedures for the examination of and providing of
merchantable title, and for the closing of transactions of this nature,
shall apply, and the Owner agrees to deliver to the purchaser a good and
sufficient Franchise Agreement and any and all other documents normally
associated therewith, free and clear of all encumbrances.
8. The Agent agrees to use its best efforts in securing purchasers for the
property; to advertise the Property in local newspapers or other
publications, as it deems necessary; to supply complete information to and
assist cooperating agents in any closing of a transaction on the Property,
when requested; and to take all reasonable precautions to protect the
Property of the Owner during the term of this Agreement.
9. The Owner agrees that it will not, during the term of this Agreement,
or any extension thereof, lease the Property or any portion thereof, or
otherwise encumber the Property.
10. The Owner agrees to pay to the Agent, at the time of closing, a
commission of ( %) percent of the sales price for the Property, in the
event of a sale or exchange of the Property during the term of this
Agreement, irrespective of whether said sale is effected by the Agent, any
cooperating agent, any third party, or the Owner, or in the event that
within sixty (60) days after the termination of this Agreement, the Owner
agrees to sell the Property to a purchaser to whom the Property was
submitted during the term of this Agreement. The Owner hereby grants Agent
permission to represent and receive commissions from both parties in any
exchange of the Property.
11. Within twenty-four (24) hours of initial contact with any prospective
purchaser, the Owner agreed to provide the Agent with the name, address and
telephone number of any such prospective purchaser, and Agent will handle
all future contacts with the prospective purchaser.
12. The Agent, any cooperating agent, or any authorized escrow agent, is
hereby authorized to accept and hold, on behalf of the Owner, any and all
money paid as a deposit or binder in regard to the Property, in accordance
with the laws of the State of , and it is expressly understood and
agreed that, in the event of a forfeiture by a prospective purchaser, the
Agent may retain fifty (50%) percent of any such deposit, or a sum equal to
the commission which would have been paid to the Agent pursuant to the
sale, whichever is less, as compensation.
13. It is expressly understood that this Agreement in no way guarantees a
sale of the Property; however, the Agent does guarantee that it will use
its continued best efforts to sell same during the term of this Agreement.
14. The Agent may use the name of the Owner in connection with marketing
or advertising the Property.
15. The Owner hereby authorizes the Agent to solicit and obtain any and
all information concerning the Property and all encumbrances thereon, and
the Owner agrees to execute any and all documents required for this
purpose.
16. In the event that any one or more of the provisions of this Agreement
shall for any reason be held to be invalid, such invalidity shall not
affect any other provision of this Agreement.
17. This Agreement contains the entire agreement of the parties and no
oral statements or prior agreements shall have any force and effect. This
Agreement shall not be modified except by a writing executed by both
parties hereto.
18. This agreement, and all transactions contemplated hereby, shall be
governed by, construed and enforced in accordance with the laws of the
State of . The Parties herein waive trial by jury and agree to
submit to the personal jurisdiction and venue of a court of subject matter
jurisdiction located in County, State of . In the event
that litigation results from or arises out of this Agreement or the
performance thereof, the Parties agree to reimburse the prevailing party’s
reasonable attorney’s fees, court costs, and all other expenses, whether or
not taxable by the court as costs, in addition to any other relief to which
the prevailing party may be entitled. In such event, no action shall be
entertained by said court or any court of competent jurisdiction if filed
more than one year subsequent to the date the cause(s) of action actually
accrued regardless of whether damages were otherwise as of said time
calculable.
19. The covenants and agreements contained herein are binding upon the
parties hereto and their respective heirs, successors, legal
representatives and assigns, as the case may be.
20. It is expressly agreed that this Agreement will not be recorded in any
form in the public records of any county.
21. Neither party may assign this Agreement without the express written
consent of the other.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the
day and year first above written/Signed, sealed and delivered in the
presence of:
“OWNER”
Witness
Witness
“AGENT”
Witness
Witness
EXHIBIT “A”
(Description of Property)
The prototype unit of (business name), located at , any and all
other units of the business completed prior to or during the term of this
Agreement, and all franchises for the operation of a (business name) store.