Fill and Sign the Commercial Corporation Form

Agreement to Incorporate to Erect Commercial Builder with Builder and Marketing Agent to become Shareholders in the Corporation and the Building to be Transferred to New Corporation Agreement to incorporate made _________________ (date) , between _______________________ (Name of First Potential Shareholder) of ____________ _________________________________________________________ (street address, city, state, zip code) , hereinafter called Builder , and ___________________ (Name of Second Potential Shareholder) of _________________________________ ____________________________________ (street address, city, state, zip code) , hereinafter called Marketing Agent, said Builder and Marketing Agent being jointly referred to as the Incorporators . Whereas, Builder proposes to develop the Premises located at ______________ _______________________________________________________ (street address, city, state, zip code ), which Premises (the Premises ) are more particularly described in Exhibit A attached to this Agreement and incorporated by reference; and Whereas, the above-mentioned development of such Premises shall include the construction of a commercial office building on the Premises, such Building referred to in this Agreement as the Building ; and Whereas, Builder proposes to finance the construction of the above-mentioned Building by a sale and leaseback or other arrangements with __________________ (Name of Lender) , hereinafter called Lender ; and Whereas, Marketing Agent desires to find suitable tenants for such Building in exchange for a defined interest in the Building as set forth in this Agreement; Now, therefore, for and in consideration of the mutual covenants contained in this agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Obtaining Land Builder shall use his best efforts to do all that is necessary in order to obtain fee simple title to the above-mentioned Premises. 2. Financial Agreements Builder shall use its best efforts to make all the necessary Agreements with Lender in order to obtain financing to construct the Building on the Premises. 3. Construction of Building Builder shall construct the Building on the Premises at his own expense and without any expense to Marketing Agent . The Building shall contain approximately ______ (number) square feet of floor area. 4. Marketing Agent’s Duties A. Marketing Agent shall use his best efforts to obtain leases, commitments to lease, or letters of intent to lease from corporations, partnerships, associations, or persons for all the available office space in the Building. Marketing Agent shall have, during the term of this Agreement, an exclusive agency to obtain tenants for the above-described Building so long as Marketing Agent shall not be in default in any respects under the terms of this Agreement. B. All of the above-mentioned leases, commitments to lease, or letters of intent to lease from corporations, partnerships, associations, or persons shall provide for office space for not less than $____________ per square foot of rentable floor area for a term of not less than ______ (number) years. C. All proposed lessees shall be acceptable to Builder , provided, however, that any proposed lessee shall be deemed to be acceptable to Builder if Builder does not reject the proposed tenant in writing within _______ (number) days after receipt of the lease, commitment to lease, or a letter of intent to lease signed by the proposed tenant. 5. Formation of New Corporation A. Builder and Marketing Agent will cause to be formed a joint management and leasing corporation (the Corporation ). The Corporation shall have an initial capital and surplus of $____________. B. Marketing Agent shall contribute ______% of the initial capital and surplus and Builder shall contribute the remainder. ______% of the common shares to be issued with respect to the initial capital of the Corporation shall be issued to Builder and the remainder shall be retained by the Corporation in escrow to be issued either to Builder or Marketing Agent as and to the extent provided in Section 6 . No additional shares shall be issued by the Corporation except with the consent of the parties and except for preferred shares as provided in Section 12 . 6. Release of Shares Held in Escrow A. If Marketing Agent has obtained leases of the type described in Section 4 of this Agreement for all the rentable floor area in the above-mentioned Building by the end of (e.g., one year) _____________ after construction is completed, as evidenced by the issuance of a certificate of occupancy by _______________ ___________________ (name of local authority) , Marketing Agent shall be entitled to receive all the common shares of the Corporation held in escrow pursuant to Section 5 . B. If by the end of the (e.g., one-year) _______________ period, the Marketing Agent has obtained leases of the above-described type for more than (e.g., one half) _______________, but less than all, of the rentable floor area, Marketing Agent shall be entitled to receive the fraction of all the shares held in escrow which is formed by taking as the numerator the number of square feet of rentable floor area for which leases have been obtained by the Marketing Agent, and the number of square feet of rentable floor area in the entire Building as the denominator. C. Builder shall be entitled to receive all shares held in escrow which Marketing Agent is not entitled to receive pursuant to this Section. 7. Publicity The above-described Building shall be publicized as a project that has been designed, constructed, and developed by Builder . The role of Marketing Agent and Marketing Agent's interest in the Building shall be given suitable recognition in all publicity. In addition, the interest and role of the Corporation in connection with the above-mentioned Building shall also be given suitable recognition in all publicity. 8. Brokerage Commission and Leasing Expenses Marketing Agent shall not charge or receive, either directly or indirectly, or pay any brokerage commission or fee for obtaining tenants for the Corporation. This Section shall not, however, prohibit the negotiation of a lease through an independent broker employed by a tenant who arranges for a brokerage commission or fee to be paid to such broker. 9. Compensation of Marketing Agent All leases, commitments to lease, or letters of intent to lease shall be taken in the name of the Corporation. Commencing with the effective date of this Agreement and continuing for (e.g., one year) __________________ afterward, or for such period as the Corporation may determine, Marketing Agent shall be the project manager for Marketing purposes and receive the remuneration of $____________ per (e.g., week) ______________ , which remuneration shall accrue from the effective date of this Agreement, but the Corporation shall not be obligated to pay the remuneration unless and until leases, letters of intent, or commitments to lease, of the type described in this Agreement, shall have been obtained for at least ______% of the rentable floor area in the Building. 10. Option of Builder to Purchase Marketing Agent’s Shares Builder has the option to purchase the common shares of the Corporation owned by Marketing Agent at the price of $____________ for each ______% of the total shares of the Corporation owned by Marketing Agent . This option to purchase may be exercised as to all of the common shares owned by Marketing Agent at any time from (e.g., six months) ___________________ after construction of the above-mentioned Building is completed, as evidenced by the issuance of a certificate of occupancy by _____________________ (name of local authority) , until (e.g., two years) ________ ___________ from the date of this Agreement. 11. Transfer of Title to Corporation Builder shall transfer to the Corporation, subject to all encumbrances and liens, all of his rights, title, and interest in the Building and the Premises on which it is constructed as soon as the Building is substantially completed. Any income accruing to the Building or land during the course of construction shall inure to the benefit of the Corporation. 12. Financing of Construction It is the duty of Builder to obtain financing for the construction of the above- mentioned Building equal to (e.g., 100%) ___________ of the cost of such Building. If financing is not sufficient to cover all costs, and Builder provides funds to permit completion of construction, or in the event of preplanning costs, Builder or Marketing Agent have not been reimbursed for costs, the amount provided by Builder shall be reflected by the issuance of preferred shares to Builder , the total value of which shall equal such amount. These preferred shares shall be entitled to dividends at the rate of _______% per year of the total value of the shares, such dividends to be cumulative. Such dividends shall accrue from the date of issuance, but shall not be paid until after completion of construction of the above-mentioned Building. 13. Failure of Marketing Agent to Obtain Minimum Leases A. If Marketing Agent fails to obtain leases for (e.g., one half) ___________ of the rentable floor area in the above-mentioned Building prior to _____________________ (date) , this Agreement shall terminate. Upon the termination of this Agreement, Builder or the Corporation shall repay to Marketing Agent $____________ contributed by Marketing Agent pursuant to Section 5 of this Agreement in complete discharge of all claims of Marketing Agent arising out of this Agreement or of actions taken under this Agreement of any nature whatever. B. If upon termination, Marketing Agent has obtained tenants for more than (e.g., 40%) _________ of the rentable floor area of the above-mentioned Building, but less than (e.g., 50%) _________ of such floor area, Marketing Agent shall be entitled to receive a standard real estate commission with respect to the tenants it has obtained, but such commission shall be reduced by the amount the Corporation has paid in salaries pursuant to Section 9 of this Agreement. C. Upon termination of this Agreement pursuant to this Section, Marketing Agent shall not be liable to Builder for any claim arising out of its failure to fulfill its obligations under this Agreement. 14. Failure to Compete Building A. If Builder withdraws from the Building project prior to the time title to such Building is vested in the Corporation, all debts and obligations of the Corporation to persons other than Builder or Marketing Agent shall be satisfied, or adequate provision for the same made; any salary that has accrued, but is not payable pursuant to Section 9 of this Agreement, shall be paid; and from the assets remaining, Marketing Agent shall be repaid $____________, which sum it has contributed pursuant to Section 5 , and Builder shall be entitled to whatever remains. B. Upon such liquidation this Agreement shall terminate and Builder shall not be liable for any claim of Marketing Agent arising out of this Agreement or out of action taken under this Agreement of any nature whatever. 15. Inspection of Books Marketing Agent shall have the right, at any time during normal business hours, to inspect the books of the Corporation to determine whether expenses charged to the Corporation conform with the provisions of this Agreement. If Marketing Agent believes that particular charges paid by the Corporation do not conform to the terms of this Agreement, or that certain charges should be reimbursed by the Corporation and the Corporation does not agree, and the dispute cannot be settled by mutual Agreement, then such question shall be settled by arbitration in accordance with the rules of the American Arbitration Association in force at the time of the dispute. The determination of any such board of arbitrators shall be final and conclusive as to the propriety of such charge or right of reimbursement. 16. Appointment of Project Manager Marketing Agent shall appoint a project manager to manage the day-to-day affairs of the above-mentioned Building upon terms to be approved by Builder . 17. Compensation of Officers of Corporation All officers, directors, and employees of the Corporation who are employed by or affiliated with either Builder or Marketing Agent or who are directors or shareholders of either Builder or Marketing Agent shall serve without compensation unless otherwise specifically provided by this Agreement. 18. Fees for Consultation Engineering, architectural, and other consultants employed by the Corporation may be employed by Builder also, but fees for the consulting services shall be reasonable in amount, and Builder shall not charge or receive, directly or indirectly, any portion of such fees. 19. Designation of Directors by Marketing Agent After determination of the percentage of the common shares of the Corporation that Marketing Agent is entitled to receive pursuant to Section 6 of this Agreement, Marketing Agent shall be entitled to designate the same percentage of the directors of the Corporation as its percentage interest in the common shares of the Corporation. Prior to that time, so long as Marketing Agent is not in default under this Agreement, Marketing Agent shall be entitled to designate ______% of the directors of the Corporation. 20. Receipts and Surplus A. Receipts by the Corporation arising from the above-mentioned Building shall be used to pay rent, debts of the Corporation, real estate taxes, expenses of maintenance, insurance premiums, federal and state franchise, income, license, and other taxes, and other charges or expenses incurred in the course of operating the above-mentioned Building. B. To the extent required by any contract, commitment, or Agreement of the Corporation or by prudent business judgment, the surplus shall be credited to a reserve or reserves, and shall be used to pay current and accrued dividends on the preferred shares issued pursuant to Section 12 of this Agreement, and to redeem such preferred shares. Payment of dividends, accrued dividends, and redemption of the shares shall be pro rata. C. To the extent there is any surplus remaining, such surplus shall be paid out as dividends on the common shares. 21. Severability The invalidity of any portion of this Agreement will not and shall not be deemed to affect the validity of any other provision. If any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision. 22. No Waiver The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred. 23. Governing Law This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of ____________. 24. Notices Any notice provided for or concerning this Agreement shall be in writing and shall be deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth at the beginning of this Agreement. 25. Attorney’s Fees In the event that any lawsuit is filed in relation to this Agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasonable sum for the successful party's attorney fees. 26. Entire Agreement This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement. 27. Modification of Agreement Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing and signed by each party or an authorized representative of each party. 28. Assignment of Rights The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm, corporation, or other entity without the prior, express, and written consent of the other party. 29. In this Agreement, any reference to a party includes that party's heirs, executors, administrators, successors and assigns, singular includes plural and masculine includes feminine. WITNESS our signatures as of the day and date first above stated. ________________________ _________________________ (P rinted name) (P rinted name) ________________________ _________________________ (Signature of Builder) (Signature of Marketing Agent) State of _____________________ County of ___________________ Personally appeared before me, the undersigned authority in and for the said County and State, on this ________________ (date) , within my jurisdic tion, the within- named ____________________ (Name of Builder) , who acknowledged that he executed the above and foregoing instrument. ________________________________ NOTARY PUBLIC My Commission Expires: ____________________ State of _____________________ County of ___________________ Personally appeared before me, the undersigned authority in and for the said County and State, on this ________________ (date) , within my jurisdic tion, the within- named ________________________ (Name of Marketing Agent) , who acknowledged that he executed the above and foregoing instrument. ________________________________ NOTARY PUBLIC My Commission Expires: ____________________