1. Exclusive Agency. Seller grants Lemara Commercial (“Broker”) the sole and exclusive right to dispose of the Business beginning immediately and ending at 11:59 p.m. on the Termination Date (the "Exclusive Period") on the above terms or on any other terms to which Seller consents. Seller agrees to pay Broker the percentage of the Purchase Price or the Minimum Broker's Fee as indicated above, whichever is greater, upon any Disposition of the Business, or if Broker, Seller, cooperating broker or any other person procures a buyer who offers to purchase the Business upon the terms set forth above or on any other terms agreed to by Seller. Seller grants Broker a security interest in the Business for the amount of the Broker's Fee. Broker agrees to make reasonable efforts to sell the Business.
2. Disposition. As used in this Agreement, "Disposition" of the Business includes the sale, merger, lease, trade, exchange or transfer of all or any part of or interest in the Business except for assets sold in the ordinary course of business. Disposition also includes the sale of all or any part or interest in the Seller's real property associated with the Business. This definition includes, without limitation, the transfer or sale of some or all of the stock of a corporation or the retention as an employee or consultant of any prospective buyer or of any person or entity referred to the Business by Broker. If the sale is of an ownership interest (e.g. corporate stock, partnership shares or LLC member interest), "Seller'' means the owner of that interest.
3. Purchase Price. For purposes of this Agreement, the "Purchase Price" is defined as the total consideration paid, directly or indirectly, for the Business or its assets including but not limited to cash; cash equivalents; notes made to Seller or successor beneficiaries; liabilities assumed by buyers; liabilities remaining on the balance sheet at closing; assets retained by Seller except those excluded above; real property, equipment, or intellectual property sold, licensed, optioned or leased; non-competition, employment, consulting or management agreements; the expected value of amounts, royalties or any other contingent payments; and stock or other securities received in exchange for Seller's stock or assets.
4. Broker’s Fee. Seller agrees that the Broker's Fee shall be paid by Seller upon any Disposition of the Business whether made by Broker, Seller or anyone else during the term of this Agreement and any extension. Seller also agrees to pay Broker’s fee, if broker made the presentation to buyer and the same buyer decided to enter in to agreement with the seller after the expiration of the listing agreement. To the extent of the Broker's Fee, Seller hereby irrevocably assigns to Broker any sales proceeds and makes Broker a party to any escrow.
5. Advertising. Seller consents to Broker publishing, advertising or distributing information about the Business to prospective buyers and to cooperating brokers, and contacting landlords and any others regarding any of the information about the Business. Seller will be responsible to Broker for any fee lost by Broker resulting from any material misrepresentations or omissions by Seller of any information relevant to the Business or its transferability.
6. Dual Agency. Seller understands and agrees that Broker may act as a dual agent representing both buyer and Seller.
7. Compliance. Seller represents and warrants that Seller is now and will remain in fullm compliance with all local, state and federal laws, rules and regulations regarding the operation of the Business.
8. Seller Warranties. Seller warrants that a) all information relating to the Business which has been or will be provided to the Broker or prospective buyers by the Seller or Seller's agents is complete and accurate, b) Seller has disclosed, or will promptly disclose, all material facts relating to the Business which might reasonably influence a buyer's decision to purchase and the amount a buyer is willing to pay, and c) Broker may rely upon the accuracy of any such information without independent investigation. Seller agrees to promptly notify Broker of any material changes which might affect the operation or value of the Business.
9. Indemnity. Seller will protect, indemnify, defend and hold harmless Broker against any claims, including any damages, liabilities, costs and attorney fees resulting from Broker's communication of any information relevant to the Business provided or approved by Seller.
10. Leases and Contracts. Seller agrees to transfer all assignable leases and other contracts relating to the Business and to obtain any necessary third party consents. Seller acknowledges that Seller may remain liable on such agreements after transfer, unless released by lessor or other contracting party.
11. Acceleration of Broker's Fee. Seller agrees to immediately pay the Broker the percentage of the Listing Price or the Minimum Broker's Fee, whichever is greater, and that Broker shall be released from any further duties and obligations under this agreement, if during the Exclusive Period, or any extension thereof, Seller a) attempts to cancel this agreement or withdraw the Business from sale, b) refuses or is unable to comply with the Agreement terms for any reason, thereby preventing Disposition of the Business upon the terms set forth above or any other terms accepted by Seller, c) enters into a contract for Disposition of the Business, accepts a deposit, opens an escrow or records a notice of intent to sell the Business without the written consent of the Broker regardless of the amount, terms and conditions accepted by the Seller or d) a franchisor or other party exercises its right of first refusal to purchase the Business after an offer is presented. The cancellation or rescission of any of the foregoing shall not act as a release of the Seller from liability for the Broker's Fee.
12. Referral of Buyers. Seller agrees to refer to Broker any prospective buyer with whom Seller has or has had discussions regarding the sale of the Business during or prior to the exclusive period.
13. Post-termination Obligations. Seller agrees to immediately pay the Broker the percentage of the Purchase Price or the Minimum Broker's Fee, whichever is greater, upon any Disposition of the Business within 24 months from the Termination Date of this Agreement to any person or entity referred to the Business by the Broker, or to whom Broker or Seller furnished information regarding the Business during the exclusive period.
14. BuyerDeposits. Broker is authorized to accept and hold on eller's behalf a buyer's deposit toward the Purchase Price.
15. Buyer’s Credit. Seller acknowledges that Broker makes no representation as to the creditworthiness of any buyer or the content of any credit report, and that the decision to extend credit to a buyer is solely the decision of the Seller. Broker will not verify any representations made by buyer as to buyer's creditworthiness, business experience or financial condition. Broker shall not be required to furnish credit reports on any buyer. Seller agrees to look only to buyer for relief and to Indemnify, defend and hold Broker harmless in connection with any damage caused Seller.
16. Mediation. As a condition precedent to initiation of any legal action or arbitration proceeding by either party, Seller and Broker shalt mediate any dispute or claim between them arising out of this Agreement or any resulting relationship or transaction between such parties.
17. Advertisement of Sale. Seller agrees that after the closing Broker may advertise its role in the sale of the Business.
18. Entire Agreement; Amendment; Integration; Severability. This Agreement contains all the terms agreed to by the parties relating to its subject matter. It replaces all previous discussions, understandings, and agreements. Any change to this Agreement must be in writing and signed by each party affected by such change. If any provision herein is found to be unenforceable, it shall be modified to the minimum extent necessary to permit its enforceability, and the remainder of the Agreement shall remain in full force and effect.
19. Governing Law; Attorneys' Fees; Venue. This Agreement shall be governed by the laws of the State of California. if legal action or arbitration is instituted to enforce this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees, expert fees and costs, except attorney’s fees shall not be recoverable by any party that refuses to mediate the dispute in good faith. The venue shall be the county in which the Seller's Broker's office is located.
20. Franchises. If Seller is a franchisor, the Commission reflected above shall apply to any future sales of other franchise locations from Seller to a Buyer introduced to Seller by Broker.
21. Net Listings. If this is a Net Listing, the Broker shall reveal the amount of the commission to the Seller before the Seller becomes committed to the transaction. Seller agrees to hold harmless Broker against any claim relating to the setting of the Net Listing Price or the advertised price for the Business.