PART 200 FRANCHISE DISCLOSURE ACT : Sections Listing

TITLE 14: COMMERCE
SUBTITLE A: REGULATION OF BUSINESS
CHAPTER II: ATTORNEY GENERAL
PART 200 FRANCHISE DISCLOSURE ACT


SUBPART A: DEFINITIONS

SUBPART B: OPINIONS, EXEMPTIONS

SUBPART C: ADVERTISING

SUBPART D: HEARINGS

SUBPART E: DENIAL BASED ON FINANCIAL STATEMENTS, ESCROW, GUARANTY, SURETY BOND

SUBPART F: REGISTRATION REQUIREMENTS

SUBPART G: AREA FRANCHISE AND SUBFRANCHISE REGISTRATION REQUIREMENTS – RESPONSIBILITIES FOR FILING

SUBPART H: FAILURE TO DILIGENTLY PROSECUTE APPLICATION

SUBPART I: REGISTRATION OF FRANCHISE BROKERS

SUBPART J: REGISTRATION OF SALESPERSONS

AUTHORITY: Implementing and authorized by the Franchise Disclosure Act of 1987 [815 ILCS 705].

SOURCE: Filed April 25, 1977, effective May 5, 1977, by the Office of the Secretary of State; transferred to the Attorney General by P.A. 80-31, effective February 28, 1978; rules repealed, new rules adopted and codified at 8 Ill. Reg. 1367, effective January 13, 1984; emergency amendments at 12 Ill. Reg. 1124, effective January 1, 1988, for a maximum of 150 days; amended at 12 Ill. Reg. 9424, effective May 18, 1988; amended at 13 Ill. Reg. 15365, effective September 19, 1989; peremptory amendment at 18 Ill. Reg. 2522, effective January 31, 1994; amended at 19 Ill. Reg. 16950, effective January 1, 1996; expedited correction at 20 Ill. Reg. 4458, effective January 1, 1996; amended at 23 Ill. Reg. 11561, effective September 7, 1999.

SUBPART A: DEFINITIONS

SUBPART B: OPINIONS, EXEMPTIONS

SUBPART C: ADVERTISING

SUBPART D: HEARINGS

SUBPART E: DENIAL BASED ON FINANCIAL STATEMENTS, ESCROW, GUARANTY, SURETY BOND

SUBPART F: REGISTRATION REQUIREMENTS

SUBPART G: AREA FRANCHISE AND SUBFRANCHISE REGISTRATION REQUIREMENTS – RESPONSIBILITIES FOR FILING

SUBPART H: FAILURE TO DILIGENTLY PROSECUTE APPLICATION

SUBPART I: REGISTRATION OF FRANCHISE BROKERS

SUBPART J: REGISTRATION OF SALESPERSONS


Section 200.APPENDIX C   Escrow Forms

 

Section 200.ILLUSTRATION A   Escrow Agreement

 

Agreement, made this

 

day of

 

,

 

, by

(name of franchisor)

, a

(type of business entity)

organized

under the laws of the State of

 

(hereinafter referred to as "Franchisor"), and

 

hereinafter referred to as "BANK", as Escrowee for the

franchisees of Franchisor;

 

WHEREAS, Franchisor is desirous of establishing franchises in the State of Illinois; and

 

WHEREAS, it is in the discretion of the Illinois Attorney General as administrator of the Illinois Franchise Disclosure Act, to require an escrow of the franchise fees; and

 

WHEREAS, in order to conform to the procedures for arranging an escrow account, Franchisor desires to enter into an escrow agreement with BANK, pursuant to which initial franchise fees are to be held in escrow until Franchisor has met its initial obligations to its franchisees.

 

NOW THEREFORE, with the foregoing recitals hereinafter incorporated by reference and made a part hereof, it is agreed as follows:

 

1.         Franchisor shall deposit with BANK initial franchise fees received from franchisees that are required to be escrowed under the order of the Administrator, but BANK shall not be responsible for insuring that any part or all moneys received by Franchisor from each or any one franchisee are deposited with BANK.

 

2.         Franchisor will supply BANK with the name and address of each franchisee, together with the amount of the deposit which represents moneys paid by each franchisee and BANK will maintain records containing the same information.

 

3.         All moneys received by BANK from Franchisor shall be held by BANK as escrowee for the exclusive purpose herein described and will be placed in a single segregated account designated substantially as follows:

 

(Name of Bank)

, AS ESCROWEE FOR FRANCHISES OF

(Name of

Franchisor)

(hereinafter referred to as "Escrow Account.")

 

4.         BANK shall accept such funds as Franchisor shall deliver to BANK, as escrowee, and BANK shall acknowledge the receipt of funds from Franchisor; however, BANK shall not be responsible for the accuracy of the information provided to it by Franchisor.

 

5.         Any funds deposited hereunder in the Escrow Account shall be invested and kept invested by BANK, at the option of the Franchisor, in instruments of its choosing, until they are to be disbursed as provided in paragraph 6 hereof.  All interest received and any increment thereon shall be added to the funds so deposited in the Escrow Account and shall be distributed as provided in paragraph 6.

 

6.         BANK shall pay out funds, plus interest, if any, from the Escrow Account upon the occurrence of one of the following conditions:

 

(a)       Upon receipt of a letter from an officer of Franchisor directing BANK to pay out such funds to Franchisor, accompanied by a written notice from the Administrator stating that he takes no exception (hereinafter referred to as "No Exception Notice") to the release, BANK shall pay part or all of the moneys held in escrow for the benefit of a specified franchisee, plus interest, if any, to Franchisor.

 

(b)       Upon written notice from the Administrator BANK shall return part or all of the deposited franchise fee and other funds, plus interest, if any, to a specified franchisee.

 

(c)       BANK shall pay funds into court or disburse or deliver them in accordance with any final order of any court of competent jurisdiction.

 

BANK shall not be personally liable for any act taken or omitted by it in good faith and in the exercise of its own best judgment.  BANK shall also be fully protected in relying upon any written notice, demand, certificate or document which it in good faith believes to be genuine.

 

7.         BANK is authorized, in its sole discretion, to disregard any and all notices or instructions given by any of the undersigned or by any other person, firm or corporation, except only such notices or instructions by the Administrator as are hereinafter provided for and orders of process of any court entered or issued with or without jurisdiction.  If any property subject hereto is at any time attached, garnished, or levied upon under any court order or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case of any court order affecting such property or any part thereof, then and in any of such events BANK is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree which it is advised by legal counsel of its own choosing is binding upon it; if it complies with any such order, writ, judgment or decree, it shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance even though such order, writ, judgment or decree may be subsequently reversed, modified, annulled, set aside or vacated.

 

8.         Written consent of BANK to act in the capacity of escrowee shall be manifested upon the duly authorized execution of this Agreement. The Administrator may, at any time, inspect the records of BANK, insofar as they relate to this Escrow Agreement.  At the Administrator's discretion, statements indicating status of the escrow shall be furnished by BANK to the Administrator.  An executed duplicate original of this Agreement shall be filed with the Administrator at Illinois Attorney General, Franchise Division, 500 South Second Street, Springfield, Illinois  62706.

 

9.         BANK shall be paid by Franchisor for any expenses incurred by it and reasonable compensation for its services hereunder.  Funds held by BANK pursuant to this Agreement shall not be subject to any liens or charges by BANK.

 

10.       If BANK believes it to be reasonably necessary to consult with counsel concerning any of its duties in connection with this Agreement, or in the event BANK retains counsel upon becoming involved in litigation on account of any deposit or of this Agreement, Franchisor shall reimburse BANK for and indemnify and hold BANK harmless against any and all costs, attorney's fees, charges, disbursements and expenses in connection with such consultation or litigation.

 

11.       Franchisor unconditionally guarantees that, in the event BANK misapplies, dissipates, converts or is otherwise responsible for a deficiency in the funds deposited in the Escrow Account through the exercise of less than a fiduciary standard of care, Franchisor shall reimburse each and every franchisee to the extent of such deficiency if such amounts deposited are required to be returned to such franchisee under paragraph 6(a) through (c) hereof.

 

12.       Franchisor shall give each franchisee a copy of this Agreement prior to collecting any moneys from such franchisee.

 

13.       BANK's duties as escrowee shall terminate upon final distribution of all moneys received under this Agreement.

 

IN WITNESS WHEREOF, this Agreement has been duly executed, the parties intending to be legally bound hereby.

 

ATTEST:

 

BANK

 

 

By:

 

 

Its Secretary

Its:

 

 

 

 

 

 

FRANCHISOR

 

By:

 

 

 

Its:

 

 

(Source:  Amended at 23 Ill. Reg. 11561, effective September 7, 1999)


Section 200.APPENDIX C   Escrow Forms

 

Section 200.ILLUSTRATION B   Franchisor's Petition for Release of Escrowed Funds

 

 

)

 

 

)

SS

 

)

 

 

IN THE MATTER OF:

FRANCHISOR:

FRANCHISEE:

 

BEFORE THE ATTORNEY GENERAL OF ILLINOIS

AS ADMINISTRATOR OF THE FRANCHISE DISCLOSURE ACT

 

            The undersigned franchisor hereby requests the Administrator to authorize release from

escrow the sum of

 

, plus accrued interest representing the franchise fee paid by

 

on the

 

day of

 

,

 

.

 

            The undersigned franchisor hereby represents that it has fulfilled the initial obligations owed to the franchisee under the franchise and other agreements and that the franchisee has commenced doing business.

 

 

 

 

Franchisor

By:

 

Escrowee Bank

 

Name and Title

 

Address of Bank

Printed Name of Franchisee

Phone Number of Bank

Address of Franchisee

 

(Source:  Amended at 23 Ill. Reg. 11561, effective September 7, 1999)


Section 200.APPENDIX C   Escrow Forms

 

Section 200.ILLUSTRATION C   Franchisee's Petition For Release of Escrowed Funds

 

 

 

)

 

 

)

SS

 

)

 

 

IN THE MATTER OF:

FRANCHISOR:

FRANCHISEE:

 

BEFORE THE ATTORNEY GENERAL OF ILLINOIS

AS ADMINISTRATOR FOR THE FRANCHISE DISCLOSURE ACT

 

The undersigned franchisee hereby requests the Administrator to authorize release from

escrow the sum of $

 

, plus accrued interest representing the franchise fee paid

by me on the

 

day of

 

,

 

.

 

The undersigned franchisee hereby represents that the franchisor has not fulfilled the initial obligations owed to me under the franchise and other agreements and that I have not commenced doing business.

 

 

 

Franchisee Signature

Printed Name of Franchisee

Address of Franchisee

Subscribed and sworn to before me this

 

 

 

day of

 

,

 

 

.

 

 

 

Notary Public

 

(Source:  Amended at 23 Ill. Reg. 11561, effective September 7, 1999)


Section 200.APPENDIX D   Guaranty Forms

 

Section 200.ILLUSTRATION A   Guaranty of Performance

 

            For value received, ___(name of guarantor)___, located at ____(address)____, absolutely and unconditionally guarantees the performance by franchisor, __(name of franchisor)__, of all obligations under the Illinois Franchise Disclosure Act and Rules, and of all of the obligations of franchisor to furnish goods and/or services necessary to establish and open the business of franchisees to whom franchises are granted by franchisor pursuant to the registration of such franchises in the State of ______________ and the terms and conditions of its franchise and other agreements entered into after this date with franchisees under the jurisdiction of the Illinois Franchise Disclosure Act, as the same have been or may hereafter be amended, modified, renewed or extended from time to time. This guaranty shall continue in force until all such obligations of franchisor shall have been satisfied or until such liability of franchisor to such franchisees has been completely discharged, whichever first occurs.  Guarantor shall not be discharged from liability hereunder as long as any such claim by a franchisee against franchisor remains outstanding.  Notice of acceptance is waived.  Notice of default on the part of franchisor is not waived.  This guaranty shall be binding upon guarantor, its successors and assigns.

            In witness whereof, guarantor has, by a duly authorized officer, executed this guarantee at______________, this _________ day of ______________, ______.

 

 

ATTEST:

 

 

 

Guarantor

 

By:

 

 

 

Title:

 

 

 

(Source:  Amended at 23 Ill. Reg. 11561, effective September 7, 1999)


Section 200.APPENDIX D   Guaranty Forms

 

Section 200.ILLUSTRATION B   Corporate Resolution

 

RESOLVED, that it is desirable and in the best interest of this Corporation that the franchisor be authorized to offer and sell franchises in the State of Illinois; that the President, any Vice-President, the Secretary, or any Assistant Secretary are hereby authorized to execute on behalf of this Corporation any Guaranty of Performance of all of the duties and obligations of franchisor under the Illinois Franchise Disclosure Act and Rules, and obligations to furnish goods and/or services necessary to establish and open the business of franchisees to whom franchises are granted by franchisor pursuant to the registration of such franchises in the State of Illinois, and the terms and conditions of its franchise and other agreements entered into with franchises under the jurisdiction of the Illinois Franchise Disclosure Act, as the same have been or may hereafter be amended, modified, renewed, or extended from time to time; and that the execution of previous such Guarantees of Performance of franchisor by any of the aforesaid officers is hereby ratified and approved.


Section 200.APPENDIX D   Guaranty Forms

 

Section 200.ILLUSTRATION C   Secretary's Certificate

 

            The undersigned hereby certifies that the undersigned is the __________ Secretary of ___(name of guarantor)____ , a corporation organized and existing under the laws of the State of ______________, that the foregoing is a true and correct copy of the resolution duly adopted at a meeting of the Board of Directors of said corporation held on the ______ day of ____________, ______, at which meeting a quorum was at all times present and acting; that the passage of said resolution was in all respects legal; and that said resolution is in full force and effect.

            Dated this _______ day of _____________ , ________.

 

 

 

Secretary

 

 

(Corporate Seal)

 

(Source:  Amended at 23 Ill. Reg. 11561, effective September 7, 1999)



Section 200.APPENDIX E   Surety Bond

 

We, ____(name of franchisor)____, a corporation with principal offices at ___(address of franchisor)____ as principal, and ____(name of surety company)____, a surety company with principal offices located at ____(address of Surety)____ incorporated under the laws of the State of _______________ and authorized to conduct business in the State of Illinois, as Surety, are indebted to the Administrator, Illinois Attorney General, 500 South Second Street, Springfield, Illinois  62706,  Obligee in the sum of ______________ to be paid to the Obligee or its legal representatives, successors, or assigns, for which payment we bind ourselves and our legal representatives and successors, jointly and severally.

 

WHEREAS, the above-named principal has made application to the Administrator for registration of the offer of its franchises under the Illinois Franchise Disclosure Act and is required pursuant to said law to provide the Administrator with a Surety Bond.

 

WHEREAS, the Principal proposes to offer in Illinois ____________ franchise(s) within one year from the effective date of the proposed registration under the Illinois Franchise Disclosure Act; and

 

WHEREAS, the Obligee intends to assign this bond to the respective purchaser(s) of the aforementioned franchise(s) upon sale of the aforementioned franchise(s) to said purchaser(s).

 

The conditions of this bond are that if the Principal, its agent or employees shall:

 

1.         Comply with the Illinois Franchise Disclosure Act and all rules and orders promulgated thereunder; and

 

2.         Pay all damages suffered by any person by reason of the violation of the Illinois Franchise Disclosure Act or any rules or orders promulgated thereunder or any acts, rules or orders amendatory thereof and/or supplementary thereto, or hereafter enacted, or by reason of any misrepresentation, deceit, fraud or omission to state a material fact necessary in order to make any statement made in the light of the circumstances under which such statement was made, not misleading, including, but not limited to, the failure to disclose, as required by Illinois Franchise Disclosure Act and the rules and regulations promulgated thereunder, the true financial condition of franchisor; and

 

3.         Fully completes its obligations under the Franchise Agreement and all related Agreements to provide real estate, improvements, equipment, inventory, training and other items included in the franchise offering, then this obligation shall be void; otherwise this obligation will remain in full force and effect.  This bond and obligation hereunder shall be deemed to run continuously and shall remain in full force and effect for four full year after the date of execution of this document.

 

In the event that any action or proceeding is initiated with respect to this bond, the parties agree that the venue thereof shall be the state or province in which the offer or sale of the franchise occurred.

 

IN WITNESS WHEREOF, Principal and Surety have executed this instrument at this________ day of _______________ , _______ .

 

 

 

 

 

 

Principal

 

Surety

 

(Source:  Amended at 23 Ill. Reg. 11561, effective September 7, 1999)



  • Section 200.APPENDIX F Certificate of Deposit Forms