EXHIBIT 10.9
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement") is made as of the
___________ day of ____________, ______,
BY AND BETWEEN NEW YORK BAGEL ENTERPRISES, INC.,
a Kansas corporation,
hereinafter referred to as
"SELLER"
AND COMMERCIAL EQUITY, INC.,
a Kansas corporation,
hereinafter referred to as
"BUYER"
W I T N E S S E T H :
WHEREAS, Seller is the current owner of certain real property located in
the city of ____________, ___________, and more particular described in
Exhibit "A" ("________ Land"), and all buildings, structures, facilities,
improvements and fixtures located thereon, including, without limitation, an
approximately ________ square foot facility currently used as a New York
Bagel Cafe restaurant ("________ Improvements"). The _________ Land and the
_________ Improvements are hereinafter collectively referred to as the
"__________ Facility";
WHEREAS, Seller is the current owner of certain real property located in
the city of ___________, __________,, and more particular described in
Exhibit "B" ("________ Land"), and all buildings, structures, facilities,
improvements and fixtures located thereon, including, without limitation, an
approximately________ square foot facility currently used as a New York Bagel
Cafe restaurant ("_________ Improvements"). The __________ Land and the
_________ Improvements are hereinafter collectively referred to as the
"__________ Facility"; and
WHEREAS, Seller desires to sell all of its right, title and interest in
and to the __________ Facility, and the _____________ Facility (hereinafter
collectively referred to as the "Properties") to Buyer, and Buyer desires to
purchase all of Seller's right, title and interest in and to all the
Properties from Seller, all on the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, the parties hereto agree as follows:
1. PURCHASE AND SALE. Seller agrees to sell all of its right, title
and interest in and to all the Properties to Buyer, and Buyer agrees to
purchase all of Seller's right, title and interest in and to all the
Properties from Seller, on the terms and conditions hereinafter set forth in
this Agreement.
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2. PURCHASE PRICE.
2.1 The aggregate purchase price ("Purchase Price") for all the
Properties shall be ___________________ Dollars ($__________); which
Purchase Price is comprised of: (a) ___________________ Dollars
($_________) for the _________ Facility ("_______ Purchase Price"); and
(b) ______________ Dollars ($________) for the ___________ Facility
("_________ Purchase Price").
2.2 The Purchase Price shall be paid at the Closing (as hereinafter
defined) by delivering the ________ Purchase Price, and the ______________
Purchase Price, respectively, to Seller by wire transfer of immediately
available federal funds.
3. CONDITION OF TITLE TO PROPERTIES.
3.1 At Closing, Seller shall assign to Buyer all of its right, title
and interest to each of the Properties free and clear of all liens, except
for (i) liens securing real property taxes and assessments, which
constitute liens not yet due and payable; and (ii) such other exceptions
and reservations (other than liens) shown on those certain Preliminary
Title Reports ("Preliminary Reports") issued by the title companies set
forth in Exhibit "C" ("Title Companies") for each of the Properties which
are approved in writing by Buyer. All exceptions to title permitted
pursuant to this Paragraph 3.1 are referred to in this Agreement as
"Permitted Exceptions." Seller shall provide Buyer with a copy of the
Preliminary Reports and copies of all exceptions described therein as soon
as possible. Buyer shall have ten (10) business days after the date of
Buyer's receipt thereof within which to notify Seller in writing of Buyer's
disapproval of any exceptions set forth in the Preliminary Reports. In the
event of Buyer's disapproval of any exception in any of the Preliminary
Reports, this Agreement shall thereupon terminate.
3.2 At the Closing, Buyer's right, title and interest in and to the
Properties shall be evidenced by the commitment of the title company to
issue an ALTA Owner's Form B-1970 policy of title insurance with all
endorsements required by Buyer, with liability in the amount of the
_____________ Purchase Price, and the _____________ Purchase Price,
respectively, showing fee simple interest in the Properties vested in
Buyer, subject only to the Permitted Exceptions (collective, the "Title
Policies") and the standard printed exceptions (except that the exceptions
relating to mechanic's liens and survey matters shall be deleted from the
final title insurance policy).
4. BUYER'S CONTINGENCIES. Buyer's obligation to purchase any of the
Properties is subject to satisfaction of the following contingencies
described in Subparagraphs (a) through (g) in this Paragraph 4
("Contingencies") prior to the Closing Date (as hereinafter defined) or
earlier date set forth below. Each and all of the following Contingencies
are for the sole benefit of Buyer and may be waived or deemed satisfied by
Buyer in Buyer's sole and absolute discretion:
(a) Buyer shall have approved and both Buyer and Seller shall
have executed those certain leases ("Leases") between Buyer, as the
lessor, and Seller, as the lessee, relating to each of the Properties,
upon terms and conditions mutually satisfactory to the parties, each
of which Lease shall by its terms have the Closing Date as the
"Commencement Date" thereunder.
(b) Buyer shall have reviewed and approved each of the
Preliminary Reports and all recorded exceptions to title thereon, as
and when provided under Paragraph 3 hereof, and Title Companies shall
be committed to issue all Title Policies as required hereunder without
expense to Buyer.
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(c) Seller shall have delivered to Buyer no later than five (5)
days prior to the date scheduled for Closing, and Buyer shall have
reviewed and approved, an ALTA land title survey for each of the
Properties, each prepared by a professional land surveyor entirely
satisfactory to Buyer, showing all improvements located thereon,
plotting all record easements, covenants and other encumbrances
located thereon, with the record legal description of appearing on the
face thereof.
(d) Seller shall have delivered to Buyer, and Buyer shall have
reviewed and approved, a tax lien search as to each of the Properties,
each updated as of not earlier than thirty (30) days prior to the
Closing Date.
(e) Seller shall have delivered to Buyer, and Buyer shall have
reviewed and approved, a Phase I Environmental Site Assessment as to
each of the Properties dated within three hundred and sixty (360) days
of the Closing Date.
(f) Buyer shall have approved its inspection and examination of
the physical condition of the Properties. Buyer shall have access to
all the Properties at reasonable times and shall have the right to
conduct, at Buyer's expense, soil tests, engineering feasibility
studies, environmental investigations and such other studies with
respect to the physical condition of all the Properties as Buyer may
desire. Buyer shall hold and save Seller harmless from and against
any and all loss, cost, damage, liability, entry or expense, arising
out of or in any way related to damage to property, injury to or death
of persons, or the assertion of lien claims caused by such entry,
inspection and implementation of soil tests, environmental
investigations and other studies with respect to the physical
condition of the Properties; provided, however, that notwithstanding
any contrary provision contained herein, Buyer shall have no liability
to Seller for any diminution in value of the Properties directly or
indirectly resulting from or related to any information pertaining to
the Properties discovered by Buyer and reported to Seller or its
agents pursuant to the terms of this Agreement. If Buyer elects to
terminate this Agreement by reason of failure of the Contingencies set
forth in this Paragraph 4(f), Buyer shall promptly upon such election
deliver to Seller all written reports, studies and information
prepared by third parties for Buyer which pertain to the physical
condition of the Properties.
(g) Seller shall have delivered to Buyer and Title Companies all
corporate resolutions, certificates and other documentation as may be
reasonably required by Buyer and/or Title Companies.
(h) Buyer's obligation to purchase the Properties is conditioned
on Buyer obtaining on or before the Closing financing of the Purchase
Price on terms and conditions acceptable to Buyer in Buyer's sole
discretion. In the event this contingency is not met by the Closing
Date, this Agreement shall, at Buyer's option, terminate without any
remaining liability of any party.
If Buyer disapproves any Contingency prior to the Closing or earlier
date set forth above, Buyer's sole remedy shall be to terminate this
Agreement and Seller shall have no obligation to remedy any Contingency which
Buyer disapproves.
5. REPRESENTATIONS AND WARRANTIES BY SELLER.
5.1 Seller makes the representations and warranties in this Paragraph
5, each and all of which shall survive any and all inquiries and
investigations made by Buyer and shall survive the Closing:
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(a) Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of Kansas which has the
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. Seller, and the specific,
individual parties signing this Agreement on behalf of Seller,
represent and warrant that the parties signing this Agreement on
behalf of Seller have the full legal power, authority and right to
execute and deliver this Agreement.
(b) Neither the entering into this Agreement nor the performance
of any of Seller's obligations under this Agreement will violate the
terms of any contract, agreement or instrument to which Seller is a
party.
(c) Each of the Properties is zoned to permit the operation of a
restaurant thereon, and all improvements on each of the Properties
conform to all existing building, zoning, environmental or other laws
and ordinances, and are in good operating condition and repair as of
the Closing Date. Seller has not received any notice of any presently
uncured violation of any law, ordinance, rule or regulation
(including, without limitation, those relating to zoning, building,
fire, health and safety) of any governmental, quasi-governmental
authority bearing on the construction, operation, ownership or use of
any of the Properties.
(d) Seller has not received any notice of any pending widening,
modification or realignment of any street or highway contiguous to
either property or any existing or proposed eminent domain proceeding
which would result in a taking of all or any part of any of the
Properties.
(e) None of the easements, covenants, conditions, restrictions
or agreements to which any of the Properties is subject interferes
with or is breached by the use or operation of the Properties as
presently used and operated as a restaurant.
(f) Seller has not been served with any litigation, and no
arbitration proceedings have been commenced, which do or will affect
any aspect of any of the Properties or Seller's ability to perform its
obligations under this Agreement. In addition, Seller has not been
threatened in writing with any litigation (or arbitration) by a third
party which would affect any aspect of any of the Properties or
Seller's ability to perform its obligations under this Agreement.
(g) Adequate gas, telephone, electricity, water and sewer
facilities are available to all the Properties, and all such
facilities serving the Properties have been paid for such that Buyer
will not be subject to charges or assessments for capital or hookup
costs relating to such facilities.
(h) There are not any written commitments to, or written
agreements with, any governmental or quasi-governmental authority or
agency materially affecting any of the Properties which have not been
heretofore disclosed by Seller to Buyer in writing.
(i) All expenses in connection with the construction of all the
improvements on all the Properties have been fully paid, such that
there is no possibility of any mechanics' or materialmens' liens being
asserted or filed in the future against any of the Properties in
respect of any initial construction activities undertaken prior to the
Closing.
(j) Seller has not been served or notified by any governmental
or quasi-governmental authority that (i) any of the Properties, or any
adjoining property, contains or may contain any "Hazardous Materials"
in violation of any "Environmental Regulations" (as those terms are
defined in Paragraph 5.1(k) below); or (ii) Hazardous Materials have
heretofore been stored, used or
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maintained on, in or under any of the Properties in violation of any
Environmental Regulations. In addition, to the best of Seller's
knowledge, but without any specific investigation therefore, there are
no Hazardous Materials located in, on or under all or any portion of
any of the Properties or the area surrounding any of the Properties.
(k) As used in this Agreement, the terms "Environmental
Regulations" and "Hazardous Materials" shall have the following
meanings:
(i) "ENVIRONMENTAL REGULATIONS" shall mean all applicable
statutes, regulations, rules, ordinances, codes, license,
permits, orders, approvals, plans, authorizations, and similar
items, of all governmental agencies, departments, commissions,
boards, bureaus or instrumentalities of the United States, states
and political subdivisions thereof and all applicable judicial
and administrative and regulatory decrees, judgments and orders
relating to the protection of human health or the environment,
including, without limitation: (1) all requirements, including,
without limitation, those pertaining to reporting, licensing,
permitting, investigation and remediation of emissions,
discharges, releases or threatened releases of Hazardous
Materials, whether solid, liquid or gaseous in nature, into the
air, surface water, groundwater or land, or relating to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials, whether
solid, liquid or gaseous in nature; and (2) all requirements
pertaining to the protection of the health and safety of
employees or the public.
(ii) "HAZARDOUS MATERIALS" shall mean (1) any flammables,
explosive or radioactive materials, hazardous waste, toxic
substances or related materials including, without limitation,
substances defined as "hazardous substances," "hazardous
materials," "toxic substances" or "solid waste" in the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, 42 U.S.C. Sec. 9601, ET SEQ.; the
Hazardous Materials Transportation Act, 49 U.S.C. Section 1801,
ET SEQ.; the Toxic Substances Control Act, 15 U.S.C., Section
2601 ET SEQ.; the Resource Conservation and Recovery Act of 1976,
42 U.S.C. Section 6901 ET SEQ.; Occupational Safety and Health
Act, 29 U.S.C. Section 651, ET SEQ.; and any and all similar
state and local laws and ordinances, and the regulations now or
hereafter adopted, published and/or promulgated pursuant thereto;
(2) those substances listed in the United States Department of
Transportation Table (49 C.F.R. 172.101 and amendments thereto)
or by the Environmental Protection Agency (or any successor
agency) as hazardous substances (40 C.F.R. Part 302 and
amendments thereto); (3) those substances defined as "hazardous
wastes," "hazardous substances" or "toxic substances" in any
similar federal, state or local laws or in the regulations
adopted and publications promulgated pursuant to any of the
foregoing laws or which otherwise are regulated by any
governmental authority, agency, department, commission, board or
instrumentality of the United States of America, the States of
_____________ or __________, or any political subdivision
thereof; (4) any pollutant or contaminant or hazardous, dangerous
or toxic chemicals, materials, or substances within the meaning
of any other applicable federal, state, or local law, regulation,
ordinance, or requirement (including consent decrees and
administrative orders) relating to or imposing liability or
standards of conduct concerning any hazardous, toxic or dangerous
waste, substance or material, all as amended; (5) petroleum or
any by-products thereof; (6) any radioactive material, including
any source, special nuclear or by-product material as defined at
42 U.S.C. Sections 2011 ET SEQ., as amended, and in the
regulations adopted and publications promulgated pursuant to said
law; (7) asbestos in any form or condition; and (8)
polychlorinated biphenyls.
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(l) There are no other written agreements for the use, occupancy
or possession of any of the Properties, or any portion thereof. There
are no oral agreements for the use, occupancy or possession of any of
the Properties or any portion thereof.
(m) Until the Closing, each of the Properties will continue to
be operated in substantially the same manner as operated as of the
date of this Agreement. Seller will not do or cause anything to be
done that would change, alter or modify the operation of each of the
Properties in the manner in which it is operated as of the date of
this Agreement, without the prior written consent of Buyer.
(n) Seller has neither engaged nor dealt with any broker or
finder in connection with the sale contemplated by this Agreement and
Seller shall indemnify, defend and hold Buyer harmless from and
against, any commission or finder's fee payable to any party who
represents or claims to represent Seller.
(o) Seller will not alter the physical condition of any of the
Properties from and after the date of this Agreement through, and
including, the Closing Date, reasonable wear and tear excepted.
Subject to Paragraphs 10 and 11 hereof, if, through no fault of
Seller, the physical condition of any of the Properties is different
as of the Closing from that as of the date of this Agreement, the
terms and conditions of Paragraph 5.2, below shall apply.
5.2 Each and all of the representations and warranties set forth in
Paragraph 5.1 above shall be true and correct as of the Closing; provided
that, if, prior to the Closing, new events have occurred which were beyond
the control of Seller (other than pursuant to Paragraphs 10 and 11 hereof)
and which render any previously true representation or warranty untrue,
Seller shall immediately disclose those matters by written notice to Buyer.
Buyer shall have ten (10) business days after the earlier of (i) such
disclosure; or (ii) Buyer's independent discovery that such representation
or warranty has become untrue, to elect, in its sole and absolute
discretion, and as its sole remedy, by written notice to Seller within said
ten (10) business day period, whether (i) to purchase the Properties or
(ii) terminate this Agreement. If Buyer fails to notify Seller of its
election to terminate this Agreement within said ten (10) business day
period provided above, Buyer shall be deemed to have accepted the modified
representations and warranties and elected to purchase the Properties.
6. REPRESENTATIONS AND WARRANTIES BY BUYER.
Buyer makes the following representations and warranties in this
Paragraph 6, each and all of which shall survive any and all inquiries and
investigations made by Seller and shall survive the Closing and recordation
of the Warranty Deeds:
6.1 Buyer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Kansas which has the power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. Buyer, and the specific, individual parties signing
this Agreement on behalf of Buyer represent and warrant that the parties
signing this Agreement on behalf of Buyer have the full legal power,
authority and right to execute and deliver this Agreement.
6.2 Buyer has neither engaged nor dealt with any broker or finder in
connection with the sale contemplated by this Agreement and Buyer shall
indemnify, defend and hold Seller harmless from and against, any commission
or finder's fee payable to any party who represents or claims to represent
Buyer.
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7. INDEMNIFICATION.
7.1 Subject to any other provisions of this Agreement to the
contrary, each party agrees to indemnify ("Indemnitor") and hold the other
party ("Indemnitee") harmless from and against any claim, loss, damage or
expense, including any reasonable attorneys' fees (including attorneys'
fees on appeal), asserted against or suffered by the Indemnitee resulting
from:
(a) Any breach by the Indemnitor of this Agreement; or
(b) The inaccuracy or breach of any of the representations,
warranties or covenants made by the Indemnitor in this Agreement.
7.2 The Indemnitee shall submit any claim for indemnification under
this Agreement to the Indemnitor in writing within a reasonable time after
Indemnitee determines that an event has occurred which has given rise to a
right of indemnification under this Paragraph 7 and shall give Indemnitor a
reasonable opportunity to investigate and cure any default of Indemnitor
under this Agreement and eliminate or remove any claim by a third party.
Notwithstanding the foregoing, if the nature of Indemnitor's default or the
third party claim is such that it would be impracticable or unreasonable to
give Indemnitor an opportunity to investigate and cure such default and
remove such claim, Indemnitee need not give Indemnitor such opportunity.
7.3 If such claim for indemnification relates to a claim or demand
presented in writing by a third party against Indemnitee, Indemnitor shall
have the right to employ counsel reasonably acceptable to Indemnitee to
defend any such claim or demand, and Indemnitee shall make available to
Indemnitor, or its representatives, all records and other materials in its
possession or under its control reasonably required by Indemnitor for its
use in contesting such liability. If Indemnitor does not elect to defend
any such claim or demand, Indemnitee may do so at its option, but shall not
have any obligation to do so.
8. CLOSING.
8.1 Provided that all Contingencies set forth in Paragraph 4 have
been satisfied or waived, as provided therein, the parties shall close the
transactions ("Closing") on _____________, _______ or earlier date agreed
upon by the parties ("Closing Date"). Upon the Closing, Seller shall
deliver exclusive right of possession of each of the Properties to Buyer
subject only to the permitted exceptions.
8.2 At the Closing, Buyer shall deliver to Seller the following funds
and documents:
(a) The Purchase Price (in the aggregate amount specified in
Paragraph 2), as adjusted pursuant to this Agreement; and
(b) Duly executed Leases between Buyer, as lessor, and Seller,
as lessee, relating to each of the Properties.
8.3 Upon the Closing, Seller shall pay all closing costs and expenses
incurred by both Seller and Buyer in connection with this transaction,
including, without limitation, (a) the entire cost of the Title Policies;
(b) the cost of any and all documentary transfer tax or stamps or other
sales tax; (c) all recording fees; and (d) all of Buyer's costs and
expenses as defined below. "Buyer's costs and expenses" shall mean all
costs and expenses incurred by Buyer, including, without limitation,
Buyer's attorneys' fees and expenses not
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to exceed Five Thousand Dollars ($5,000) in connection with the
negotiation, drafting, due diligence review and investigation, and the
closing of the transactions contemplated herein. Buyer is to incur no
direct cost or expense in connection with the Closing of the transactions
contemplated herein.
8.4 If the Closing fails to occur as provided hereunder as a result
of the default of this Agreement by a party, the defaulting party shall pay
all title charges; provided, however, that nothing in this Paragraph 8
shall be deemed to limit, and the provisions of this Paragraph 8 shall be
in addition to, all other rights and remedies of the nondefaulting party.
9. PRORATIONS. There shall be no prorations of any costs or expenses
related to any of the Properties owing to the fact that the Leases are
so-called triple-net leases and all costs and expenses which would otherwise
be prorated shall be paid by Seller pursuant to the Leases.
10. DAMAGE OR DESTRUCTION PRIOR TO CLOSING. If any of the Properties,
or any portion thereof, is damaged or destroyed prior to the Closing from any
cause whatsoever, whether insured risk or not, including, without limitation,
fire, flood, accident or other casualty which, according to Buyer's and
Seller's best estimate, would cost more than Ten Thousand Dollars ($10,000)
to repair, Buyer shall have the option, upon written notice to Seller, to
either (i) terminate this Agreement, or (ii) purchase all the Properties. If
Buyer elects to purchase the Properties, Seller shall promptly repair such
Property. In the event that Buyer's and Seller's best estimate of the cost
of repair is Ten Thousand Dollars ($10,000) or less, Buyer shall purchase the
Properties and Seller shall promptly repair such Property. Should any damage
or destruction occur prior to the Closing, the date scheduled for the Closing
shall be extended for a period of time not to extend thirty (30) days, for
the purpose of allowing Buyer and Seller sufficient time to estimate the cost
of repair. If Buyer fails to notify Seller of its election under this
Paragraph 10, Buyer shall be deemed to have elected to purchase the
Properties.
11. EMINENT DOMAIN.
11.1 The words "condemnation" or "condemned" as used in this Paragraph
11 shall mean the exercise of, or intent to exercise, the power of eminent
domain expressed in writing, as well as the filing of any action or
proceeding for such purpose, by any person, entity, body, agency or
authority having the right or power of eminent domain (the "condemning
authority").
11.2 If Seller receives written notice from a condemning authority
advising of a condemnation of all or any portion of the Properties
("Condemnation Notice"), Seller shall immediately advise Buyer of same in
writing and deliver therewith a copy of the Condemnation Notice. Within
three (3) days after Buyer's receipt of the Condemnation Notice, Buyer
shall notify Seller of its election to either (i) terminate this Agreement
or (ii) purchase the Properties. If Buyer elects to purchase the
Properties, Seller shall transfer to Buyer at the Closing all proceeds from
condemnation or Seller's right to receive all such proceeds. If Buyer
fails to notify Seller of its election under this Paragraph 11, Buyer shall
be deemed to have elected to purchase the Properties.
12. SURVIVAL OF REPRESENTATIONS. All representations, warranties,
covenants, conditions, agreements and obligations contained in or relating to
this Agreement shall survive the Closing and the recordation of the Warranty
Deeds.
13. NOTICES. All notices to be given pursuant to this Agreement shall
be either (i) personally delivered; (ii) sent via certified or registered
mail, postage prepaid; or (iii) overnight courier. If sent via personal
delivery, receipt shall be deemed effective on the day of delivery. If sent
via certified or registered mail, receipt shall be
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deemed effective the second business day after being deposited in the United
States mail. If sent via overnight courier, receipt shall be deemed
effective the next business day after the sending thereof. All notices to be
given pursuant to this Agreement shall be given to the parties at the
following respective address:
To Buyer: Commercial Equity, Inc.
300 I.M.A. Plaza
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, President
Telecopier No.: 000-000-0000
with a copy to: Foulston & Siefkin L.L.P.
000 XxxxxxxXxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000
Attention: Xxxxxxx X. Xxxx XX
Telecopier No.: 316-267-6345
To Seller: New York Bagel Enterprises, Inc.
300 I.M.A. Plaza
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000-0000
Attention: Xxxx X. Xxxxxx
Vice President - Strategic Planning
Telecopier No.: (000) 000-0000
with a copy to: Klenda, Mitchell, Xxxxxxxxx & Xxxxxxxx, L.L.C.
1600 Epic Center
000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
14. ENTIRE AGREEMENT. This Agreement, and the exhibits attached
hereto, represent the entire Agreement between the parties in connection with
the transactions contemplated hereby and the subject matter hereof and this
Agreement supersedes and replaces any and all prior and contemporaneous
agreements, understandings and communications between the parties, whether
oral or written, with regard to the subject matter hereof. There are no oral
or written agreements, representations or inducements of any kind existing
between the parties relating to this transaction which are not expressly set
forth herein. This Agreement may not be modified except by a written
agreement signed by both Buyer and Seller.
15. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto, their respective heirs, legal
representatives, administrators, successors in interest and assigns.
16. WAIVER. No waiver by any party at any time of any breach of any
provision of this Agreement shall be deemed a waiver or a breach of any other
provision herein or a consent to any subsequent breach of the same or another
provision. If any action by any party shall require the consent or approval
of another party, such consent or approval of such action on any one occasion
shall not be deemed a consent to or approval of such action on any subsequent
occasion or a consent to or approval of any other action.
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17. CAPTIONS AND HEADINGS. The captions and paragraph numbers
appearing in this Agreement are inserted only as a matter of convenience and
do not define, limit, construe, or describe the scope or intent of this
Agreement.
18. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be considered an original and all of which taken together
shall constitute one and the same instrument.
19. GOVERNING LAW. This Agreement has been prepared, negotiated and
executed in, and shall be construed in accordance with, the laws of the State
of Kansas.
20. ATTORNEYS' FEES. If either party named herein brings an action or
proceeding to enforce the terms hereof or declare rights hereunder, the
prevailing party in any such action (or proceeding), on trial or appeal,
shall be entitled to its reasonable attorneys' fees to be paid by the losing
party as fixed by the Court (or if applicable, the arbitrator).
21. TIME OF ESSENCE. Time is of the essence with respect to all
matters contained in this Agreement.
22. DATE OF AGREEMENT. All references in this Agreement to "the date
of this Agreement" or "the date hereof" shall be deemed to refer to the date
set forth in the first paragraph of this Agreement.
23. INVALIDITY OF ANY PROVISION. If any provision (or any portion of
any provision) of this Agreement is held to be illegal, invalid, or
unenforceable under present or future laws effective during the term of this
Agreement, the legality, validity, and enforceability of the remaining
provisions (or the balance of such provision) shall not be affected thereby.
24. DRAFTING OF AGREEMENT. Buyer and Seller acknowledge that this
Agreement has been negotiated at arm's length, that each party has been
represented by independent counsel and that this Agreement has been drafted
by both parties and no one party shall be construed as the draftsperson.
25. NO THIRD PARTY BENEFICIARY RIGHTS. This Agreement is entered into
for the sole benefit of Buyer and Seller and no other parties are intended to
be direct or incidental beneficiaries of this Agreement and no third party
shall have any right in, under or to this Agreement.
26. INCORPORATION OF EXHIBITS. Each and all of the exhibits to this
Agreement are incorporated herein as if set forth in full in this Agreement.
27. PUBLIC ANNOUNCEMENTS. The parties agree that all statements and/or
public announcements, including those to the media, concerning this
transaction shall be subject to the parties' collective approval, which
approval shall not be unreasonably or untimely withheld.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph of this Agreement.
NEW YORK BAGEL ENTERPRISES, INC.,
a Kansas corporation
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
"SELLER"
COMMERCIAL EQUITY, INC.,
a Kansas corporation
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
"BUYER"
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