CONTRACT FOR THE PURCHASE AND SALE OF REAL ESTATE
Exhibit 10.2
Subject
to the terms and provisions contained herein, Steak
n
Shake Operations, Inc.,
an
Indiana corporation ("Seller"), hereby agrees to sell and convey to Xxxxxxxx
Enterprises Wild Geese, LLC
an
Indiana limited liability company and/or its permitted assigns ("Purchaser"),
and Purchaser hereby agrees to buy and pay for that certain real property
situated in the City of Knoxville, Xxxx County, Tennessee, containing
approximately 1.06 acres of land, more or less (the "Real Estate"), more
particularly described on Exhibit
"A"attached
hereto and made a part hereof, along with all improvement located thereon (the
"Real Estate").
This
Contract is executed upon the following terms and conditions:
1. Purchase
Price.
The
Purchase Price for the Real Estate shall be One Million One Hundred Eighty
Thousand Dollars ($1,180,000.00). The Purchase Price shall be payable at Closing
(as hereinafter defined), in cash, by cashier’s or certified check, or by wire
transfer of immediately available funds, subject to prorations and adjustments
as hereinafter set forth.
2. Independent
Contract Consideration.
Upon
complete execution of this Contract, Purchaser shall pay to the order of Seller
Independent Contract Consideration (so called herein) in the amount of $100.00
as consideration for Seller’s entering into this Contract. The Independent
Contract Consideration is not refundable and shall be retained by Seller
notwithstanding any other provisions of this Contract.
3. Survey.
Within
five (5) days following the Effective Date, Seller, at Purchaser’s sole cost and
expense, shall order an update of that ALTA survey prepared by Site Incorporated
as Job No. 1396, last revised March 18, 2002 to show all improvements located
on
the Real Estate (the "Survey").
The
Survey shall contain a certification from the surveyor or engineer to Purchaser,
the Title Company and any lender designated by Purchaser.
4. Title
Commitment.
As of
the date hereof, Purchaser, at Seller’s cost and expense, has ordered an update
of Title Policy currently in effect (No L70822/ab) (the "Title Commitment")
issued through Tennessee Valley Title Insurance Company, First Tennessee Plaza,
0000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000-0000 (the "Title
Company"), setting forth the status of title of the Real Estate and all
exceptions, including rights-of-way, easements, restrictions, covenants,
reservations and other conditions, if any, affecting the Real Estate with true,
legible copies of all instruments referred to in the Title Commitment affecting
title to the Real Estate, not already in Seller’s possession and delivered
pursuant to Section 5 hereof.
5. Additional
Information.
Within
fifteen (15) days following the Effective Date, Seller, at Seller’s sole cost
and expense, shall furnish to Purchaser, to the extent available, all
engineering studies, surveys, soil tests, and environmental reports or studies.
Purchaser acknowledges and agrees that foregoing documents will be delivered
to
Seller without any warranties as to their accuracy or completeness.
6. Review
of Title and Survey.
Purchaser
shall have a period (the "Review Period") ending thirty (30) days after the
Effective Date but no later than September 25, 2005, in which to notify Seller
of any objections Purchaser has to any matters shown or referred to in the
Title
Commitment or the Survey other than those Permitted Exceptions set forth on
Exhibit
"B"
hereto
failing which Purchaser waives its right to raise such objections and title
shall be deemed satisfactory. In the event Purchaser notifies Seller of any
unacceptable exceptions or conditions, Seller shall have five (5) days
thereafter in which to notify Purchaser whether Seller will eliminate or modify
such Unacceptable Condition(s) or conditions. In the event Seller does not
respond within such 15-day period, Seller will be deemed to have declined to
eliminate or modify such Unacceptable Condition(s). If Seller does not opt
to
eliminate or modify such condition, Purchaser may (i) waive such Unacceptable
Condition(s) and proceed to Closing; (ii) terminate this Agreement (subject
to
Section
17);
or
attempt to resolve the Unacceptable Condition(s) at Purchaser’s sole cost and
expense, with Seller’s cooperation provided Seller shall not be required to
incur any costs.
7. Inspection.
At
all
times prior to Closing, Purchaser, its agents, representatives and designees
(including prospective tenants, occupants and users of the Real Estate and
their
agents and representatives) shall have the right to enter on the Real Estate
to
conduct any investigations, soil tests, environmental assessments and
engineering and feasibility studies as may deemed necessary or advisable in
connection with the purchase or use of the Real Estate; provided that
Purchaser’s entry upon the Real Estate shall not, in Seller’s judgement,
interfere with the use and operation of Seller’s restaurant. Any entry upon the
Real Estate by or on behalf of Purchaser shall be subject to such reasonable
rules, regulations, standards and conditions as Seller may impose and (without
limitation) may be conditioned upon Purchaser’s delivery to Seller of proof of
any insurance coverage that Seller may be reasonably require. Purchaser shall
deliver to Seller, promptly upon receipt by Purchaser and in any event within
five (5) days after the termination of this Contract, pursuant to this
Section,
a true
and complete copy of each inspection report or summary, survey, engineering
study, soil test report, environmental report, or written result of such
inspection, investigation, study or test conducted by or on behalf of Purchaser
in connection with a study or investigation made during the Inspection Period,
without any representation or warranty from Purchaser as to the accuracy or
completeness of such reports. Promptly after each entry onto the Real Estate,
Purchaser shall restore the Real Estate to substantially the same condition
as
it was in prior to such entry. Purchaser’s obligation to deliver copies of
report, summaries, surveys, and test results as provided in this Subsection
and
Purchaser’s obligation to restore the Real Estate as aforesaid shall survive the
termination of this Agreement or the Closing hereunder (whichever is to
occur).
Purchaser
shall indemnify and hold Seller harmless, and, at Seller’s option, defend Seller
from and against any and all losses, costs, liens, damages, claims, suits,
actions, liabilities, and expenses (including attorneys’ fees and court costs)
incurred by Seller in connection with or arising in any way out of Purchaser’s
entry upon the Real Estate pursuant to this Section. Purchaser’s obligations
pursuant to this Section shall survive a period of one (1) year after the
termination of this Contract or Closing hereunder (whichever is to occur).
For
the
purpose hereof, the term Inspection Period shall mean that period commencing
with the Effective Date and ending the earlier of Thirty (30) days thereafter
or
September 25, 2005. In the event that prior to the expiration of the Inspection
Period as extended Purchaser fails to notify Seller of Purchaser’s election to
proceed toward Closing under this Contract, the Xxxxxxx Money shall become
non-refundable and the parties shall proceed to Closing.
If
it
should be determined by Purchaser, on or before the end of the Inspection
Period, in Purchaser’s sole discretion and judgment, that the Real Estate is not
suitable for the purposes for which Purchaser intends to utilize the Real Estate
or that Purchaser, for whatever reason or for no reason at all, does not desire
to consummate the transaction contemplated by this Contract, then Purchaser
shall be entitled to terminate this Contract by giving written notice thereof
to
Seller or the Title Company prior to the expiration of the Inspection Period
(as
hereinafter defined), subject to the provisions of Section 17.
8. [Intentionally
Deleted].
9. Closing
Date and Place.
The
Closing (so called herein) hereunder shall take place at 10:00 a.m. at the
offices of the Title Company or the earlier of three (3) days after the
expiration of the Inspection Period, or September 28, 2005.
10. Seller’s
Representations and Warranties.
Seller
represents and warrants to Purchaser to the best of Seller’s knowledge, which
for purposes of this section shall refer to the actual knowledge of Xxxxxxx
X.
Xxxxxxx, Associate Counsel - Director Real Estate Law, without the benefit
of
nor obligation to make an independent investigation, as follows:
| a. |
Seller
has and, at the time of Closing, will have good and indefeasible
fee
simple title to the Real Estate, free and clear of any and all
encumbrances and title exceptions other than the Permitted
Exceptions.
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| b. |
There
are no adverse parties in possession of the Real Estate or any part
thereof and no parties in possession of any portion of the Real Estate
as
lessees, tenants at sufferance or trespassers; and no party has been
granted any license, lease or other right relating to the use or
possession of the Real Estate.
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| c. |
There
is no pending or threatened condemnation or similar proceeding affecting
the Real Estate or any part thereof, nor is any such proceeding
contemplated by any governmental
authority.
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| d. |
There
is no pending or threatened litigation, actions or proceedings against
Seller arising out of Seller’s ownership of the Real Estate which could
adversely affect or the ability of Seller to perform any of its
obligations hereunder or the use of the Real Estate by
Purchaser.
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| e. |
Seller
has not received notice from any governmental, quasi-governmental
agency
or owner association requiring the correction of any condition with
respect to the owner association requiring the correction of any
condition
with respect to the Real Estate, or any part thereof, by reason of
a
violation of any federal, state, county or city statute, ordinance,
code,
rule or regulation or stating that any investigation has been commenced
or
is contemplated regarding any of the
foregoing.
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| f. |
Seller
has full power and authority to enter into this Contract and to perform
its obligations under this Contract. The execution, delivery and
performance of this Contract and the transactions contemplated hereby
have
been duly authorized and approved and no other actions or proceedings
on
its part are necessary to authorize the execution, delivery or performance
of this Contract. This Contract constitutes the legal, valid and
binding
obligations of Seller enforceable in accordance with its
terms.
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| g. |
Seller
is not a foreign person as defined in Section 1445 of the Internal
Revenue
Code of 1986, as the same may have been or may hereafter be amended,
or
the regulations promulgated
thereunder.
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Purchaser’s
obligation to close this Contract shall be contingent on the above
representations and warranties also being true and correct on the Closing
Date.
11. AS-IS;
No Implied Representations.
Except
as
provided in Section 11A, Seller
and Purchaser acknowledge and agree that except as otherwise may be specifically
and expressly provided herein, or in the special warranty deed, neither party
has made any representations or warranties or agreements to, or on behalf of
the
other party as to any other matter concerning this Contract, the Real Estate,
the present use thereof, or the suitability of the Real Estate for Purchaser’s
intended use. Purchaser hereby acknowledges that pursuant to Section 4 hereof,
Purchaser is entitled to and shall make its own independent inspection and
investigation of the Real Estate and, in entering into this Contract, Purchaser
represents and warrants to Seller that it intends to rely solely on such
inspection and investigation of the Real Estate. ACCORDINGLY, BUYER IS NOT
RELYING AND SHALL NOT BE ENTITLED TO RELY UPON ANY REPRESENTATIONS OR WARRANTIES
OF SELLER OR ANY PRINCIPAL, AGENT, PARTNER, OFFICER, DIRECTOR, ATTORNEY,
EMPLOYEE, BROKER, OR OTHER REPRESENTATIVE OF SELLER, AND, AT THE CLOSING UNDER
THIS AGREEMENT, BUYER SHALL ACCEPT CONVEYANCE OF THE REAL ESTATE IN ITS "AS-IS",
"WHERE- IS" CONDITION AS OF THE CLOSING DATE WITH ALL FAULTS WITOUT ANY
REPRESENTATION OR WARRANTY WHATSOEVER FROM SELLER, EXCEPT AS EXPRESSLY CONTAINED
HEREIN, OR IN THE SPECIAL WARRANTY DEED. NO AGREEMENT, WARRANTY, COVENANT,
OR
REPRESENTATION, UNLESS EXPRESSLY SET FORTH HEREIN OR IN THE DEED SHALL BIND
SELLER.
11.A. Seller’s
Repair Covenant.
Seller
acknowledges that there is currently a fissure in the floor of Seller’s
restaurant building, spanning its width, and located generally toward the front
entrance (the "Fissure"). The Fissure which has created an uneven floor surface
is believed to be caused by soil conditions that have caused the restaurant
building’s foundation to settle after its initial construction. Seller covenants
and agrees, that should the consummation of the transaction contemplated herein
occur, Seller shall use all commercially reasonable efforts to repair the
Fissure within thirty (30) days of its receipt of notice from the
Purchaser.
In
addition, Seller covenants and agrees to make all reasonably necessary further
repairs to the Fissure, upon thirty (30) days written notice. Such
repair efforts will be conducted in a first-class,
good and workmanlike manner and Seller shall take all reasonable efforts to
cause such repairs to be performed at times, which will cause the least
interruption to the Purchaser’s business. Purchaser grants to Seller a license
to enter the Real Estate for the purpose of performing the repairs. Prior to
such entry Seller
shall provide to Purchaser a certificate of general liability insurance naming
Purchaser as insured in the amount of $1,000,000.00 or more from a company
licensed to do business in Tennessee and carrying a Best Rating of at least
A-,
covering all general liability caused by or resulting from entry of the Real
Estate by Seller or its contractors, agents, invitees and employees. The
covenants provided by this Section 11A shall survive closing for a period of
five (5) years.
12. Risk
of Loss.
Risk
of
all loss, destruction or damage to the Real Estate or any portion thereof,
from
any and all causes whatsoever until consummation of the Closing shall be borne
by Seller. In the event of damage by fire or other casualty or a taking by
condemnation or similar proceedings or actions of all of the Real Estate, or
any
portion of the Real Estate which, at Purchaser’s sole discretion, is material to
the use of the remainder, Purchaser shall have the option to terminate this
Contract upon written notice to Seller, in which event the Xxxxxxx Money and
all
earnings thereon shall be promptly refunded to Purchaser, and neither Purchaser
nor Seller shall have any further right or obligation hereunder. Should
Purchaser elect not to exercise its option as provided hereunder, then the
Contract shall remain in full force and effect and Seller shall assign or pay
to
Purchaser at Closing Seller's interest in and to all insurance proceeds,
condemnation awards or proceeds from any such proceedings or actions in lieu
thereof.
13. Seller’s
Obligations at Closing.
At
the
Closing, Seller shall deliver or cause to be delivered to Purchaser, at Seller’s
sole cost and expense, each of the following items:
| a. |
A
special warranty deed duly executed and acknowledged by Seller, conveying
to Purchaser good, marketable fee simple title in the Real Estate,
subject
only to the Permitted Exceptions in the form attached hereto as
Exhibit
C.
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| b. |
A
non-foreign person affidavit sworn to by Seller as required by Section
1445 of the Internal Revenue Code. In the event that (i) Seller fails
to
deliver the affidavit at Closing; or (ii) Seller delivers the affidavit
but Purchaser has actual knowledge that the affidavit is false; or
(iii)
Purchaser receives notice that the affidavit is false from any agent
of
Purchaser or Seller, then Purchaser shall be entitled to withhold
from the
Purchase Price a sum equal to ten percent (10%) of the total amount
which
otherwise would have been realized by Seller from such sale, which
sum
will be paid by Purchaser to the United States Treasury pursuant
to the
requirements of Section 1445 of the Internal Revenue Code and the
regulations promulgated thereunder.
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| c. |
An
ALTA Owner’s Policies of Title Insurance based on the updated Title
Commitment (the "Owner’s Policy") in the amount of the Purchase Price for
the Real Estate issued by the Title Company, insuring good and marketable
fee simple title to the Real Estate in Purchaser, subject only to
the
Permitted Exceptions and the standard printed
exceptions.
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| d. |
Such
evidence or documents as may be reasonably required by the Title
Company
evidencing the status and capacity of Seller and the authority of
the
person or persons who are executing the various documents on behalf
of
Seller in connection with the sale of the Real
Estate.
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14. Purchaser’s
Obligations at Closing.
At
the
Closing, Purchaser shall deliver to Seller the following items:
| a. |
The
Purchase Price in full, subject to any prorations or other adjustments
contained in this Contract by means of a wire transfer or immediately
available funds at Closing or by a bank cashier’s check made payable to
the Title Company; and
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| b. |
Such
evidence or documents as may reasonably be required by the Title
Company
evidencing the status and capacity of Purchaser and the authority
of the
person or persons who are executing the various documents on behalf
of
Purchaser in connection with the purchase of the Real
Estate.
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15. Prorations
and Costs.
Ad
valorem taxes for the then current year shall be prorated at the Closing
effective as of the Closing Date. If the Closing shall occur before the tax
rate
is fixed for the then current year, the proration of taxes shall be based upon
taxes for the prior year and adjusted for the year of closing when they become
finally determined with such settlement to be made within ten (10) days after
the date taxes are finally determined. Seller shall be responsible for any
and
all taxes related to the Real Estate for years prior to Closing due to a change
in land usage or ownership. Purchaser shall also be responsible for any and
all
transfer taxes and documentary stamps and/or recording fees payable on account
of transfer of title to the Real Estate to Purchaser. Common Area Maintenance
charges paid by Seller for the then current year, pursuant to that Declaration
of Covenants, Conditions and Restrictions for Turkey Creek shall also be
prorated at closing, effective as of the Closing Date. Purchaser shall receive
a
credit at Closing for the estimated cost of the reasonable repairs to the
parking lot surface at the Seller’s restaurant at 000 Xxxx Xxxxx Xxxx, Xxxxxx,
Xxxxxxxxx, the amount of which will be provided to Seller in an itemized writing
delivered before Closing.
16. Brokerage
Commission.
Seller
represents and warrants to Purchaser that Seller has not engaged nor utilized
the services of any broker or other professional, who can make a claim for
a
fee, commission or other compensation as the result of the consummation of
the
transaction contemplated herein. Except as otherwise provided in this Section,
Seller agrees to indemnify and hold harmless Purchaser against any claims or
losses resulting from a breach of the proceeding representation and warranty.
Purchaser represents and warrants to Seller that Purchaser has not engaged
nor
utilized the services of any broker or other professional who can make a claim
for a fee, commission or other compensation as the result of the consummation
of
the transaction contemplated herein. Purchaser agrees to indemnify and hold
harmless Seller against any claims or losses resulting from a breach of the
proceeding representation and warranty.. The provision of this Section shall
survive Closing for a period of one (1) year.
17. Termination
by Purchaser.
If this
Contract is terminated by Purchaser pursuant to Section
6, Section 7, or Section 10A,
or by
mutual agreement of the parties, the Xxxxxxx Money shall be immediately returned
to Purchaser by the Title Company, and the parties shall have no further
obligations to one another except those provisions which survive closing or
the
termination of the Contract by their express terms.
18. Seller’s
Default.
In
the
event of Seller’s default hereunder, Purchaser may, at Purchaser’s option, and
as Purchaser’s sole and exclusive remedy, either: (i) terminate this Contract by
giving written notice from Purchaser to Seller and the Xxxxxxx Money will be
immediately returned to Purchaser by the Title Company; or (ii) enforce specific
performance hereunder.
19. Purchaser’s
Default.
In
the
event that Purchaser shall fail to consummate this Contract for any reason,
except Seller’s default or the termination of this Contract pursuant to any
right of termination given to Purchaser herein, Seller, shall have the right
to
terminate this Contract by notice to Purchaser and retain the Xxxxxxx Money
as
liquidated damages; or pursue any legal remedies.
20. Notice.
All
notices, demands, or other communications of any type (herein collectively
referred to as "Notices") given by Seller to Purchaser or by Purchaser to
Seller, whether required by this Contract or in any way related to the
transaction contracted for herein, shall be in writing and shall be deemed
delivered when actually received, or, if earlier and whether or not actually
received, (i) if delivered by courier or in person, when left with any person
at
the address reflected below, if addressed as set forth below, (ii) if by
overnight courier service (such as, by way of example but not limitation, U.S.
Express Mail or Federal Express) with instructions for delivery on the next
business day, one (1) business day after having been deposited with such
courier, addressed as reflected below, and (iii) if delivered by mail, when
deposited in a Post Office or other depository under the care or custody of
the
United States Postal Service, enclosed in a wrapper with proper postage affixed
(as a certified or registered item, return receipt requested), addressed as
follows:
To
Purchaser:
Xxxxxxxx
Enterprises Real Estate, LLC
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0000
Xxxxx Xxxxx
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|
Xxxxxxxxxxxx,
XX 00000
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Attention:
Xxxx X. Xxxxxxxx
Phone:
(000) 000-0000
To
Seller:
Steak
n
Shake Operations, Inc.
500
Century Building
00
Xxxxx
Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxxxxx,
Xxxxxxx 00000-0000
Attention:
Xxxxxxx X. Xxxxxxx,
Associate
Counsel - Director Real Estate Law
Phone:
(000) 000-0000
Fax:
(000) 000-0000
21. Multiple
Unit Franchise Agreement Contingency.
Seller
and Purchaser acknowledge that they have entered into this Contract to transfer
title to the Real Estate so that Purchaser can operate the Restaurant located
thereon as a franchisee of Seller pursuant to that Multiple Unit Franchise
Agreement ("MUFA") of even date herewith. The parties further acknowledge that
if the MUFA is terminated, for any reason, before the consummation of the
transaction contemplated herein, this Contract shall terminate immediately
and
the Xxxxxxx Money shall be immediately returned to Purchaser, except if the
MUFA
is terminated before the consummation of the transaction contemplated herein
because of Purchaser breach thereof, in which event the Seller shall be entitled
to retain the Xxxxxxx Money as liquidated damages.
22. Governing
Law and Venue.
This
Contract shall be construed in accordance with the laws of the State of Indiana
and any court action arising out of this Contract shall be brought in Xxxxxx
County, Indiana.
23. Capacity.
Except
as
hereinafter provided, each person executing this Contract hereby represents
and
warrants that he has the authority to do so and that his signature shall bind
the entity for which he signed. Each party hereto shall provide the other party
and the Title Company with such documentation as the Title Company or
Purchaser’s or Seller’s attorney deems necessary to evidence the authority of
that party to perform the actions contemplated herein.
24. Timing.
Time
is
of the essence of this Contract. For purposes hereof, the "Effective Date"
of
this Contract shall be the date Seller is in receipt of a fully-executed
original of the Contract. If the date that the performance of any obligations
arising hereunder, or the date upon which any notice shall be given, is a
Saturday, Sunday or any legal holiday under the laws of the State of Texas,
then
such date shall be extended to the next business day immediately succeeding
such
Saturday, Sunday or legal holiday.
25. Attorney’s
Fees and Costs.
In
the
event either party hereto files a suit to enforce this Contract or any
provisions contained herein, the party prevailing in such action shall be
entitled to recover, in addition to all other remedies or damages, its costs,
including reasonable attorney’s fees, incurred in such suit.
26. Assignability.
This
Contract may be assigned by Purchaser without the consent of Seller, and upon
such assignment Purchaser shall be relieved of all duties and obligations
hereunder and Seller shall thereafter look solely to Purchaser’s assignee for
the performance of Purchaser’s obligations hereunder.
27. Gender.
Where
required for proper interpretation, words in the singular shall include the
plural and the masculine gender shall include the neuter and the feminine gender
and vice versa.
28. Headings.
The
descriptive headings of the several Sections contained in this Contract are
inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
29. Complete
Agreement.
This
Contract embodies the complete agreement between the parties hereto and cannot
be varied or terminated except by written agreement of the parties.
30. Withdrawal
of Offer.
Purchaser
must accept this Contract by signing and returning a fully executed copy of
the
same to Seller at the address provided in Section
20
within
ten (10) days from the date of Purchaser’s execution hereof, or this offer may,
at Purchaser’s option, be deemed to be withdrawn.
31. CONFIDENTIALITY.
SELLER,
PURCHASER AND TITLE COMPANY AGREE NOT TO CAUSE ANY PUBLIC ANNOUNCEMENTS TO
BE
MADE OF THE EXECUTION OF THIS CONTRACT OR THE CLOSING OF THIS TRANSACTION,
AND
FURTHER AGREE NOT TO DISCLOSE TO ANY PARTY, THE PURCHASE PRICE PAYABLE HEREUNDER
OR THE TERMS HEREOF. SELLER, PURCHASER AND TITLE COMPANY FURTHER AGREE NOT
TO
DISCLOSE THE EXECUTION AND DELIVERY OF THIS CONTRACT OR THE CONSUMMATION OF
THE
PURCHASE AND SALE CONTEMPLATED HEREBY. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED HEREIN, (i) SELLER, PURCHASER AND/OR TITLE COMPANY MAY DISCLOSE ANY
ASPECT OF THIS TRANSACTION TO ANY GOVERNMENTAL AGENCY, OR ANY OFFICER THEREOF,
UPON PROPER REQUEST THEREFORE, WHERE REQUIRED, IN ACCORDANCE WITH APPLICABLE
LAW, (ii) PURCHASER MAY DISCLOSE THIS CONTRACT AND THE TERMS THEREOF TO ITS
ATTORNEYS, CONSULTANTS, AGENT, REPRESENTATIVES, ENGINEERS, INSPECTORS, AND
PROSPECTIVE AND ACTUAL TENANTS, LENDERS AND INVESTORS IN CONNECTION WITH THE
ACQUISITION OF THE REAL ESTATE, (iii) SELLER MAY DISCLOSE THE CONTRACT AND
ITS
TERMS TO ITS OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS, AGENTS OR CONTRACTORS
IF
IN SELLER’S REASONABLE DISCRETION SUCH DISCLOSURE IS NECESSARY TO CONSUMMATE THE
TRANSACTION CONTEMPLATED HEREIN AND (iv) THIS CONFIDENTIALITY PROVISION SHALL
ONLY SURVIVE THE CLOSING OR TERMINATION OF THIS CONTRACT (WHICHEVER SHOULD
FIRST
OCCUR) FOR A PERIOD OF SIX (6) MONTHS AT WHICH TIME IT WILL NO LONGER BE
EFFECTIVE OR ENFORCEABLE.
32. Removal
from Market.
Upon the
full execution of this Contract, Seller hereby agrees that it shall not solicit
offers for the purchase, lease or development of the Real Estate from any
parties other than Purchaser or its assigns, while the Contract is in
effect.
33. Counterparts.
This
Contract may be executed in any number of counterparts, each of which will
be
deemed to be an original and all of which will be identical and, when taken
together, shall constitute on and the same instrument and the agreement of
the
parties hereto.
34. Good
Faith and Fair Dealing.
The
parties agree to deal with each other fairly and in good faith.
EXECUTED
on this, the 21st day of September, 2005, by Purchaser.
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Xxxxxxxx
Enterprises Wild Geese, LLC
an
Indiana limited liability company
|
By:
_/s/ Xxxx X. Reinwald__________________________
Title:__Member____________________________
EXECUTED
on this, the 21st day of September, 2005, by Seller.
STEAK
N
SHAKE OPERATIONS, INC., an Indiana corporation
By:
_/s/ Steak n Shake Operations, Inc.____________________
Name:
_David C. Milne___________________________________
Title:
_General Counsel, Corporate Secretary___________________
RECEIPT
BY TITLE COMPANY
This
Contract has been received by the Title Company this, the _____ day of
____________________, 200__; and the undersigned agrees to abide by all
provisions contained herein regarding the disposition of the Xxxxxxx
Money.
TENNESSEE
VALLEY TITLE COMPANY
By:_______________________________________________________________
Name:
Title:_____________________________________________________________
EXHIBIT
A
Real
Estate (Omitted from filing)
EXHIBIT
B
Permitted
Exceptions (Omitted
from filing)
EXHIBIT
C
Special
Warranty Deed (Omitted
from filing)
