CaseMark Franchise Transfer Agreement
Produces a tripartite agreement for the orderly transfer of franchise rights from an existing franchisee (transferor) to a qualified successor (transferee) with franchisor consent, in compliance with the original franchise agreement and applicable franchise law.
Checkpoint A: Pre-Draft Intake (Mandatory)
Gather before drafting unless the user says "use defaults" or "just draft."
- Original franchise agreement — execution date, parties, all amendments and exhibits
- FDD — current version and version in effect at original grant
- Transfer correspondence — franchisor's preliminary approval or qualification requirements
- Financial statements — transferor (3-5 years) and transferee (qualification evidence)
- Premises lease — assignment provisions, landlord consent or SNDA requirements
- Asset inventory — equipment, vehicles, IP, POS/tech systems, signage
- Compliance history — royalty payment records, default/cure history, outstanding disputes
- Transaction structure — asset sale vs. equity sale of franchise-owning entity
- Jurisdiction — franchise location state; franchisor home state
Step 1: Liability & Asset Allocation
Assets Transferred
| Category | Inclusions | Common Exclusions |
|---|---|---|
| Tangible | Equipment, fixtures, inventory, vehicles, POS/IT, signage | Transferor's personal property |
| Intangible | Franchise license, phone numbers, domains, social media, customer lists, goodwill | Corporate records unrelated to franchise ops |
| Excluded | List specifically in schedule | Assets subject to separate disposition |
Liability Split
| Party | Assumes |
|---|---|
| Transferee | All franchise obligations from closing forward (royalties, ad fund, standards, lease) |
| Transferor | Pre-closing vendor invoices, tax liabilities, employee/warranty claims, pending litigation |
| Straddling | Pre-closing incidents reported post-closing stay with transferor; partial services prorated |
Step 2: Purchase Price & Financial Terms
- Total consideration with allocation by category (tangible property, covenant not to compete, goodwill, franchise rights)
- Payment schedule: deposit at execution, balance at closing, seller-financing/earnout if applicable
- Franchisor transfer fee: exact amount or calculation per original agreement; allocate between parties; state timing
- Working capital: minimum post-closing cash, A/R and A/P treatment, inventory adjustment from pre-closing physical count
- Tax: allocation must be consistent across both parties' IRS Form 8594 filings — flag for accountant review
Step 3: Conditions Precedent
| Condition | Key Details |
|---|---|
| Franchisor written approval | Complete application (financials, background, experience, conflict check); franchisor evaluates per franchise agreement standard |
| Training completion | Franchisor's program (1-6 weeks); may include testing or supervised operation |
| New franchise agreement | Transferee signs franchisor's then-current form (may differ: higher royalties, shorter renewal) |
| Lease assignment or new lease | Landlord consent; address whether transferor released from guaranty |
| Default cure | Transferor cures all defaults; location brought to current brand standards at transferor's cost |
| Lender consent | If assets encumbered by security interests |
| Transferee due diligence | Access to location, financial records, employees, system inspection |
Step 4: Representations & Warranties
Transferor reps:
- Financial statements accurate, consistent basis, no undisclosed liabilities
- Compliance with all franchise obligations (royalties, ad fund, standards, insurance)
- Assets in good operating condition; clear title free of liens except as scheduled
- No material adverse change since most recent financials
- No pending/threatened litigation or regulatory proceedings
Transferee reps:
- Financial capacity to close and fund operations
- Receipt and review of FDD, new franchise agreement, and assumed contracts
- Opportunity to consult legal and financial advisors
- Qualifications and experience; full-time devotion if required
- Acknowledgment franchisor makes no financial performance guarantees
Step 5: Restrictive Covenants
| Covenant | Scope | Duration | Geography |
|---|---|---|---|
| Non-compete | No direct/indirect ownership or operation of competing business | 2-3 years | Territory + reasonable buffer |
| Non-solicitation (employees) | No soliciting or hiring franchise employees | 1-2 years | System-wide |
| Non-solicitation (customers) | No soliciting customers or interfering with vendor relationships | 1-2 years | Location-specific |
| Confidentiality | Ops manuals, supplier arrangements, trade secrets | Indefinite or max by law | N/A |
- Extend to transferor's affiliates, family, controlled entities
- Carve out: passive ownership of publicly traded securities below threshold
- Require return/destruction of all confidential materials at closing
- [VERIFY: non-compete enforceability in applicable state — CA and others void post-sale non-competes]
Step 6: Closing Mechanics
Deliverables
| Party | Deliverables |
|---|---|
| Transferor | Bills of sale; assignment/assumption agreements (contracts, leases); IP assignment (domains, social media, phones); vehicle titles; tax clearance certificates; UCC-3 terminations; lien releases; closing certificate |
| Transferee | Purchase price (wire/certified funds); executed assumption agreements; executed new franchise agreement; evidence of insurance (franchisor and transferor as additional insureds); personal guarantees if required |
| Franchisor | Written consent to transfer; acknowledgment of transferee as new franchisee; confirmation transferor's obligations satisfied |
Adjustments & Transition
- Prorations: rent, utilities, property taxes, insurance, prepaid ad contributions
- Inventory: physical count pre-closing; price adjusted to cost basis
- Risk of loss: transferor bears casualty risk through closing; transferee may terminate if material damage
- Transition assistance (30-90 days): transferor provides operational training, customer/supplier introductions, cooperation on license/permit transfers; specify if compensated separately or included in price
Step 7: Indemnification
| Indemnitor | Covers |
|---|---|
| Transferor | Pre-closing liabilities; rep/warranty breaches; excluded liabilities; pre-closing third-party claims |
| Transferee | Post-closing liabilities; assumed obligations; rep/warranty breaches; post-closing third-party claims |
| Parameter | Terms |
|---|---|
| Notice | Prompt written notice with description, estimated amount, supporting docs |
| Defense | Indemnifying party controls; consent required for non-monetary settlements |
| Survival | General reps: 1 year; tax and title: 3 years |
| Basket | 1-3% of purchase price (specify deductible vs. threshold) |
| Cap | 25-50% of purchase price; excludes fraud, willful misconduct, fundamental reps |
Step 8: Dispute Resolution & General Provisions
- Governing law: align with original franchise agreement or franchisor's home state; note franchise relationship law overrides [VERIFY]
- Dispute resolution: (1) executive negotiation, (2) mediation (30-60 days, shared costs), (3) binding arbitration or exclusive venue litigation
- Prevailing party attorneys' fees
- Integration clause; written amendment only; assignment restricted; notices to all three parties
- Signature blocks for all three parties with authority documentation
Checkpoint B: Post-Draft Alignment (Mandatory)
After delivering the draft, ask:
- Does the asset/liability allocation match the commercial deal terms?
- Is the transaction structured as asset sale or equity sale — and have consent provisions been adjusted accordingly?
- Are restrictive covenant durations and geography appropriate for the applicable state?
- Should I produce a shorter closing checklist or summary for the parties?
Quality Audit
- All 8 steps addressed in the draft
- Asset and liability allocation tables reflected accurately in operative sections
- Purchase price allocation consistent throughout (matches Form 8594 categories)
- Conditions precedent complete and specific to the transaction
- Restrictive covenants tailored to applicable state law
- Closing deliverables listed for all three parties
- Indemnification caps, baskets, and survival periods specified
- All [BRACKETED] placeholders clearly marked for attorney completion
- No warranty that franchisor will approve — approval is franchisor's discretion
- No invented legal standards or enforceability claims
Guidelines
- Franchise relationship laws: CA, IL, MD, MI, MN, NJ, NY, WA, WI and others impose transfer approval standards and good cause restrictions that override contract terms [VERIFY state-specific statutes]
- FTC Franchise Rule: Confirm FDD disclosure obligations satisfied for transferee; re-disclosure may be required [VERIFY]
- Lease assignment: Confirm whether lease permits assignment or requires new lease; address guaranty release explicitly
- Equity vs. asset sale: Equity transfers may require different consent provisions and may not trigger all transfer fee obligations — confirm structure early
- Do not warrant franchisor will approve the transfer
- Mark all uncertain enforceability claims with [VERIFY]
- Output requires attorney review before execution
Required disclaimer on every output:
THIS AGREEMENT IS A DRAFTING AID AND REQUIRES REVIEW BY QUALIFIED LEGAL COUNSEL BEFORE USE. IT DOES NOT CONSTITUTE LEGAL ADVICE.