Form 26-31

This form is used to create an agency relationship between a seller and a broker if the seller appoints the broker as the seller’s nonexclusive agent to sell the property for the price and on the terms specified in the agreement but retains the right to sell the property without using the agent, by selling it either directly or through another agent.

Listing Agreement

[Open Listing]

Date:

Seller:

Seller’s Mailing Address, Telephone Number, and E-mail Address:

Broker:

Broker’s Mailing Address, Telephone Number, and E-mail Address:

Property:

Commencement Date:

Termination Date:

Listing Price:

Broker’s Fee:

Agreement

In consideration of services to be performed by Broker, Seller appoints Broker as Seller’s nonexclusive agent to sell the Property for the price and on the terms described in this agreement, it being understood and agreed that Seller reserves the right to sell, exchange, or otherwise dispose of the Property to a buyer procured by Seller directly or through another broker without the assistance of Broker.

A.Agreement and Term.      This agreement will commence on the Commencement Date and will continue for a term that will expire at 11:59 p.m. local time on the Termination Date. However, if there is a pending contract in effect on the Termination Date between Seller and a buyer procured by Broker and that transaction has not been closed and funded, this agreement will continue in effect beyond the Termination Date solely with respect to that contract until the earlier of the closing and funding of the transaction described in the contract or the termi­nation of the contract in a manner permitted in the contract. The term of this agreement is also subject to extension and early termination as provided in this agreement.

B.Listing Price and Terms.      Seller agrees to sell the Property for the Listing Price or any other price that Seller may accept. Unless otherwise agreed by Seller, the Property will be sold for cash, and Seller will not provide any financing with respect to the sale. Seller will pay the typical transaction and closing costs borne by or charged to sellers of real property in Texas.

C.Exclusive Agency Relationship.      Unless otherwise specified by written agreement between Seller and Broker, it is understood and agreed that Broker will act solely as Seller’s agent in connection with the sale of the Property and that Broker is not authorized to act as an intermediary between Seller and any buyer of the Property.

D.Broker’s Fee.      Seller will pay Broker the Broker’s Fee in cash if the Broker’s Fee is earned and payable in accordance with the following provisions:

D.1.The Broker’s Fee will be earned and payable when the sale or exchange of the Property to a buyer procured by Broker, individually or in cooperation with another broker, under a contract executed by Seller is finally closed and funded, whether this occurs during the term of this agreement or after the termination of this agreement.

D.1.The Broker’s Fee will be earned if Broker, during the term of this agreement, individually or in cooperation with another broker, procures a buyer who enters into a contract with Seller to buy the Property. The Broker’s Fee, once earned with respect to a particular sale or exchange of the Property, will be payable, either during the term of this agreement or after the termination of this agreement, on either of the following events: (a) the closing and fund­ing of the sale or exchange of the Property or (b) Seller’s wrongful refusal to close the sale or to close the exchange of the Property.

D.2.Unless otherwise provided in this agreement, the Broker’s Fee will be deter­mined on the basis of the sale price (the “Sale Price”) specified in the contract between Seller and the buyer. If the disposition of the Property is consummated as an exchange of the Prop­erty for other property, the Sale Price of the Property will be deemed to be the Listing Price unless otherwise specified by Broker and Seller in writing.

D.3.If a buyer procured by Broker with whom Seller has entered into a contract for the sale of the Property during the term of this agreement breaches that contract and Seller receives the buyer’s earnest money or a portion thereof as liquidated damages, Seller will pay Broker the lesser of one-half of the amount of the liquidated damages or the Broker’s Fee.

D.4.If litigation, mediation, or arbitration is instituted with respect to a contract between Seller and a buyer procured by Broker for the sale of the Property that is executed during the term of this agreement, and Seller collects all or a portion of the Sale Price or dam­ages by judgment, compromise, settlement, or otherwise, Seller will pay Broker the lesser of (a) one-half of the amount collected after deduction of attorney’s fees and other expenses of collection or (b) the Broker’s Fee (determined after reducing the Sale Price by the amount of attorney’s fees or other expenses of collection).

D.5.Seller will not owe Broker the Broker’s Fee if a sale of the Property does not close or fund [include if applicable: as a result of (a) Seller’s failure to deliver a title policy to a buyer, caused by Seller’s inability to cure the buyer’s title objections due to matters beyond Seller’s reasonable control; (b) Seller’s loss of ownership due to foreclosure, conveyance in lieu of foreclosure, or other legal proceeding; or (c) Seller’s failure to restore the Property fol­lowing any casualty or condemnation to its previous condition by the closing date set forth in a contract for the sale of the Property].

D.6.Seller authorizes any escrow or closing agent authorized to close a transaction for the sale or other disposition of the Property contemplated in this agreement to collect and disburse to Broker the Broker’s Fee due under this agreement if the buyer was procured by Broker. Seller authorizes Broker to instruct any closing or escrow agent to collect and dis­burse the Broker’s Fee due under this agreement if the buyer was procured by Broker.

D.7.Seller will not owe Broker the Broker’s Fee in connection with any transaction in which the buyer or other party to the transaction was procured by Seller directly or through the services of another broker without the assistance or participation of Broker.

E.Protection Period.      Subject to the conditions set forth in paragraph D. above, if, within ninety days after the termination of this agreement (the “Protection Period”), Seller enters into a contract to sell the Property to one of Broker’s Registered Buyers (as hereinafter defined) or sells, exchanges, or otherwise transfers an interest in the Property to one of Bro­ker’s Registered Buyers, Seller will pay Broker the Broker’s Fee. For purposes of this agree­ment, the Broker’s Registered Buyers will consist only of those persons whose attention has been called to the Property by Broker during the term of this agreement, or with whom Broker has negotiated the sale, exchange, or other transfer of the Property during the term of this agreement, and whose names and addresses have been provided in writing by Broker to Seller within five days after the termination of this agreement. It is specifically understood and agreed, however, that the foregoing provisions regarding the Protection Period will not be applicable with respect to any sale, exchange, or other transfer of the Property that occurs after the termination of this agreement while the Property is listed exclusively with another broker.

F.Broker’s Duties and Authorities.      During the term of this agreement, Broker will be authorized and required to take the following actions:

F.1.Broker will make reasonable efforts and act diligently to sell the Property in accordance with the terms of this agreement. Seller authorizes Broker and Broker’s associ­ates, at Broker’s sole cost and expense, to (a) advertise the Property by the means and meth­ods Broker reasonably determines to be appropriate for the Property based on then-current market practices for properties substantially similar to the Property; (b) furnish comparative marketing and sale information about other properties to prospective buyers; (c) disseminate information about the Property to other brokers and their associates through a multiple-listing service or such other means as Broker reasonably determines to be appropriate; (d) enter the Property, and accompany other brokers and their associates who wish to enter the Property, at reasonable times and, if the Property is then occupied, on reasonable advance notice, to show the Property to prospective buyers; (e) authorize property inspectors, appraisers, and repair personnel to enter the Property at reasonable times and, if the Property is then occupied, on reasonable notice, for pertinent purposes; (f) obtain information from any holder of any note secured by a lien on the Property concerning the note or lien; and (g) on a final and closed sale of the Property to a buyer procured by Broker, disclose the Sale Price and terms to the local tax appraisal district and, if applicable, multiple-listing service.

F.2.Broker is not authorized to (a) execute any document in the name of or on behalf of Seller with respect to the Property, (b) authorize any repairs to the Property without Seller’s prior written consent, (c) authorize the expenditure of any funds on behalf of Seller without Seller’s prior written consent, (d) negotiate any earnest money deposit or other instru­ment in connection with the Property, (e) use a “lock-box” for keys to the Property, or (f) place any “For Sale” signs on the Property or remove other signs offering the Property for sale or lease without Seller’s prior written consent.

F.3.Broker will not be obligated to market the Property after Seller has entered into a binding contract unless the contract provides otherwise. If Broker is obligated to submit sub­sequent or backup offers, Seller will specifically provide in the contract for the sale of the Property with a buyer that Seller may continue to market the Property so that Broker may receive subsequent or backup offers, which will be submitted to Seller as received for consid­eration by Seller when the prior contract is terminated or renegotiated. If Seller enters into a contract to sell the Property that does not provide for the submission of backup offers, and Broker subsequently receives a subsequent or backup offer to purchase the Property, Broker will inform Seller and submit the subsequent or backup offer to Seller when the prior contract is terminated or renegotiated.

F.4.Broker will not be responsible in any manner for personal injury to Seller result­ing from acts of third parties or loss of or damage to personal or real property due to vandal­ism, theft, freezing water pipes, or other causes, except the negligence or misconduct of Broker. If the Property becomes vacant during the term of this agreement, Seller will notify Seller’s casualty insurance company and request that the insurance coverage regarding the Property be modified to include a “vacancy clause” to cover the Property. Broker will not be responsible for the security of the Property or for inspecting the Property on any periodic basis unless otherwise agreed in writing by Seller and Broker.

G.Broker’s Representations and Covenants.      Broker represents and warrants to, and covenants with, Seller as follows:

G.1.Broker is duly licensed as a real estate broker authorized to provide real estate brokerage services in accordance with this agreement by the Texas Real Estate Commission (the “Commission”) under the Texas Real Estate License Act (the “Act”), as amended, and will maintain that license in full force and effect at all times during the term of this agreement. All associates employed by Broker to assist with marketing and selling the Property, and all other brokers with whom Broker cooperates in connection with marketing and selling the Property, will be duly licensed by the Commission as real estate brokers or agents in accor­dance with the Act when any such services are rendered.

G.2.All activities by Broker and Broker’s associates hereunder will be conducted in strict compliance with the Act, the rules and regulations of the Commission, and all other pro­visions of applicable law, including, without limitation, all fair housing laws.

H.Seller’s Representations and Covenants.      Seller represents and warrants to, and covenants with, Broker as follows:

H.1.Seller represents that (a) Seller has fee simple title to the Property, peaceable possession of the Property and all improvements and fixtures on the Property unless rented, and the legal capacity to convey the Property; (b) no person or entity has any right to pur­chase, lease, or acquire the Property by virtue of a contract, option, right of first refusal, or other agreement; (c) there are no delinquencies or defaults under any deed of trust, mortgage, or other encumbrance on the Property; (d) the Property is not subject to the jurisdiction of any court whose permission or consent is required for the execution of this agreement or the sale, exchange, or other disposition of the Property; and (e) all information regarding the Property that has been provided by Seller to Broker, or that may be provided by Seller to Broker after the execution of this agreement, has been or will be, to the best of Seller’s knowledge, true, correct, and complete in all material respects.

H.2.Seller will cooperate fully and in good faith with Broker to facilitate the show­ing and marketing of the Property at Broker’s sole cost and expense and will provide Broker with copies of all leases or rental agreements pertaining to the Property, if any, and advise Broker of any tenants moving into or out of the Property.

H.3.Seller will provide Broker and all prospective buyers of the Property with dis­closure notices regarding the condition of the Property, if and to the extent required by law. Seller authorizes Broker to deliver such disclosure notices to prospective buyers of the Prop­erty at or before the time a contract is executed for the sale, exchange, or other disposition of the Property. Seller agrees to complete all such disclosure notices based on Seller’s best knowledge and belief and in a manner that discloses all material defects or facts concerning the Property that are actually known to Seller. Seller agrees to indemnify, defend, and hold Broker and Broker’s associates harmless from any damages, costs, attorney’s fees, or expenses arising from Seller’s knowingly giving to Broker or Broker’s associates or any buyer of the Property information regarding the Property that is actually known to Seller to be incorrect in any material respect or from Seller’s failure to disclose to Broker or Broker’s associates or any buyer of the Property any material information regarding the Property that is actually known to Seller.

H.4.Seller will furnish to a buyer of the Property (a) an owner policy of title insur­ance at Seller’s expense for the basic premium cost of such policy (without regard to any modifications or endorsements) in the amount of the Sale Price and dated at or after the clos­ing of the sale of the Property; (b) a [general/special] warranty deed conveying title to the Property subject only to liens securing payment of a debt created or assumed as part of the Sale Price, taxes for the current year, restrictive covenants and utility easements common to any platted subdivision in which the Property is located, and other reservations or exceptions that will not materially impair or interfere with the buyer’s anticipated use of the Property or that are otherwise acceptable to the buyer; (c) property tax statements showing no delinquent taxes; and (d) copies of restrictive covenants and documents evidencing exceptions to any title commitment other than the standard printed title exceptions.

H.5.Seller will indemnify, defend, and hold Broker harmless from any damages, costs, attorney’s fees, or expenses arising from acts of third parties or loss of or damage to personal or real property due to vandalism, theft, freezing of water pipes, or any other causes, except the negligence or misconduct of Broker.

H.6.Seller will furnish to the escrow or closing agent closing any sale or other dispo­sition of the Property contemplated by this agreement such information regarding Seller and the transaction as the agent will require to report the transaction to the Internal Revenue Ser­vice in accordance with applicable law.

H.7.Unless otherwise specified by written notice from Seller to Broker, Seller rep­resents that Seller is not a nonresident alien, foreign corporation, foreign partnership, foreign trust, foreign estate, or other foreign person, requiring a buyer of the Property to withhold a portion of the Sale Price under section 1445 of the Internal Revenue Code of 1986, as amended. At or before the sale or other disposition of the Property, Seller will provide Broker and any buyer of the Property any affidavits and other information reasonably required to con­firm the representations concerning the nonforeign status of Seller.

I.Termination for Cause.      Either party is entitled to terminate this agreement before the Termination Date if the other party fails to perform its obligations under the agreement and the failure to perform is not cured to the reasonable satisfaction of the party giving written notice of such failure within thirty days after receipt of the notice. Except for a termination due to Broker’s failure to be licensed under the Act, any such termination will not be effective with respect to any contract for the sale, exchange, or other disposition of the Property previ­ously executed by Seller and a buyer that is then pending closing.

J.Attorney’s Fees.      If [either/any] party retains an attorney to enforce this agreement, the party prevailing in litigation is entitled to recover reasonable attorney’s fees and court and other costs.

K.Binding Effect.      This agreement binds, benefits, and may be enforced by the succes­sors in interest to the parties.

L.Choice of Law.      This agreement will be construed under the laws of the state of Texas, without regard to choice-of-law rules of any jurisdiction. Venue is in the county or counties in which the Property is located.

M.Counterparts.      This agreement may be executed in any number of counterparts with the same effect as if all signatory parties had signed the same document. All counterparts will be construed together and will constitute one and the same instrument.

N.Waiver of Default.      It is not a waiver of or consent to default if the nondefaulting party fails to declare immediately a default or delays in taking any action. Pursuit of any rem­edies set forth in this agreement does not preclude pursuit of other remedies in this agreement or provided by law.

O.Further Assurances.      Each signatory party agrees to execute and deliver any addi­tional documents and instruments and to perform any additional acts necessary or appropriate to perform the terms, provisions, and conditions of this agreement and all transactions con­templated by this agreement.

P.Indemnity.      Each party agrees to indemnify, defend, and hold harmless the other party from any loss, attorney’s fees, expenses, or claims attributable to breach or default of any provision of this agreement by the indemnifying party.

Q.Entire Agreement.      This agreement is the entire agreement of the parties. There are no representations, agreements, warranties, or promises, and neither party is relying on any statements or representations of any agent of the other party, that are not in this agreement.

R.Legal Construction.      If any provision in this agreement is for any reason unenforce­able, to the extent the unenforceability does not destroy the basis of the bargain among the parties, the unenforceability will not affect any other provision hereof, and this agreement will be construed as if the unenforceable provision had never been a part of the agreement. When­ever context requires, the singular will include the plural and neuter include the masculine or feminine gender, and vice versa. Article and section headings in this agreement are for refer­ence only and are not intended to restrict or define the text of any section. The agreement will not be construed more or less favorably between the parties by reason of authorship or origin of language.

S.Notices.      Any notice required or permitted under this agreement must be in writing. Any notice required by this agreement will be deemed to be given (whether received or not) the earlier of receipt or three business days after being deposited with the United States Postal Service, postage prepaid, certified mail, return receipt requested, and addressed to the intended recipient at the address shown in this agreement. Notice may also be given by regular mail, personal delivery, courier delivery, or e-mail and will be effective when received. Any address for notice may be changed by written notice given as provided herein.

T.Recitals.      Any recitals in this agreement are represented by the parties to be accurate, and constitute a part of the substantive agreement.

U.Time.      Time is of the essence. Unless otherwise specified, all references to “days” mean calendar days. Business days exclude Saturdays, Sundays, and legal public holidays. If the date for performance of any obligation falls on a Saturday, Sunday, or legal public holi­day, the date for performance will be the next following regular business day.

V.Broker’s Lien.      Broker has the right to claim a lien under the provisions of Texas Property Code chapter 62.

   
[Name of seller]

   
[Name of broker]