EXHIBIT 10.17
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement") is made as of
the 20th day of January, 1999,
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 lessee of certain real property located
at 21st and Tyler in the city of Wichita, Kansas, and more particular described
in Exhibit "A" ("Wichita Land"), subject to that certain Ground Lease by and
between Xxxxxxx X. Xxxxxxxxxxxxx and Xxxx Xxxxx Xxxxxxxxxxxxx, as lessors, and
Seller, as lessee, attached hereto as Exhibit "B" (the "Ground Lease") and the
owner of all buildings, structures, facilities, improvements and fixtures
located thereon, including, without limitation, a facility currently used as a
New York Bagel Cafe restaurant ("Wichita Improvements"); provided, however, that
upon expiration of Ground Lease all the Wichita Improvements shall revert to the
lessors of the Ground Lease. The Wichita Land, the Wichita Improvements and the
Ground Lease are hereinafter collectively referred to as the "Wichita Facility";
and
WHEREAS, Seller desires to sell all of its right, title and interest in
and to the Wichita Facility to Buyer, and Buyer desires to purchase all of
Seller's right, title and interest in and to the Wichita Facility 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 Wichita Facility to Buyer, and Buyer agrees to
purchase all of Seller's right, title and interest in and to all the Wichita
Facility from Seller, on the terms and conditions hereinafter set forth in this
Agreement.
2. PURCHASE PRICE.
2.1 The aggregate purchase price ("Purchase Price") for the
Wichita Facility shall be One Hundred Eighty Thousand Dollars
($180,000).
2.2 The Purchase Price shall be paid at the Closing (as
hereinafter defined) by delivering the Purchase Price to Seller by
wire transfer of immediately available federal funds.
3. CONDITION OF TITLE TO WICHITA FACILITY.
3.1 At Closing, Seller shall assign to Buyer all of its right,
title and interest to the Wichita Facility 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 the
Preliminary Title Report ("Preliminary Report") issued by the title
company set forth in Exhibit "C" ("Title Company") for the Wichita
Facility 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 Report and a copy 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 Report. In the event of Buyer's disapproval of any
exception in the Preliminary Report, this Agreement shall thereupon
terminate.
3.2 At the Closing, Buyer's right, title and interest in and to
the Wichita Facility shall be evidenced by the commitment of the title
company to issue an ALTA Owner's and Loan Leasehold policy of title
insurance with all endorsements required by Buyer, with liability in
the amount of the Purchase Price, showing a leasehold interest in the
Wichita Facility vested in Buyer, subject only to the Permitted
Exceptions (the "Title Policy") 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 the Wichita
Facility is subject to satisfaction of the following contingencies described in
Subparagraphs (a) through (f) 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:
Buyer shall have approved and both Buyer and Seller shall have
executed that certain lease ("Lease") between Buyer, as the lessor,
and Seller, as the lessee, relating to the Wichita Facility, 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.
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Buyer shall have reviewed and approved the Preliminary Report and all
recorded exceptions to title thereon, as and when provided under
Paragraph 3 hereof, and Title Company shall be committed to issue the
Title Policy as required hereunder without expense to Buyer.
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 the Wichita Facility, 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.
Seller shall have delivered to Buyer, and Buyer shall have reviewed
and approved, a tax lien search as to the Wichita Facility, updated as
of not earlier than thirty (30) days prior to the Closing Date.
Seller shall have delivered to Buyer, and Buyer shall have reviewed
and approved, a Phase I Environmental Site Assessment as to the
Wichita Facility dated within three hundred and sixty (360) days of
the Closing Date.
Buyer shall have approved its inspection and examination of the
physical condition of the Wichita Facility. Buyer shall have access to
the Wichita Facility 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 the Wichita Facility 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 Wichita Facility; provided, however, that
notwithstanding any contrary provision contained herein, Buyer shall
have no liability to Seller for any diminution in value of the Wichita
Facility directly or indirectly resulting from or related to any
information pertaining to the Wichita Facility 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(d), 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 Wichita Facility.
Seller shall have delivered to Buyer all corporate resolutions,
certificates and other documentation as may be reasonably required by
Buyer.
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Buyer's obligation to purchase the Wichita Facility 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.
Seller shall have delivered to Buyer a duly executed assignment of the
Ground Lease.
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:
(a) Seller is a corporation duly organized, validly existing and
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) The Wichita Facility is zoned to permit the operation of a
restaurant thereon, and all improvements on the Wichita
Facility conform to all existing building, zoning,
environmental or other laws and ordinances, and is 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 the Wichita Facility.
(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 the Wichita Facility.
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(e) None of the easements, covenants, conditions, restrictions
or agreements to which the Wichita Facility is subject
interferes with or is breached by the use or operation of
the Wichita Facility 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 the Wichita Facility 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 the Wichita Facility 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 Wichita Facility, and
all such facilities serving the Wichita Facility 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 the Wichita
Facility 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 the Wichita Land have been fully paid, such
that there is no possibility of any mechanics' or
materialmens' liens being asserted or filed in the future
against the Wichita Facility 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) the Wichita
Facility, 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 maintained on, in or under the Wichita
Facility 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 the
Wichita Facility or the area surrounding the Wichita
Facility.
(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,
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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
State of Kansas 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)
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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.
(l) Other than the Ground Lease, there are no other written
agreements for the use, occupancy or possession of the
Wichita Facility, or any portion thereof. There are no oral
agreements for the use, occupancy or possession of the
Wichita Facility or any portion thereof.
(m) Until the Closing, the Wichita Facility 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 the Wichita Facility 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 the Wichita
Facility 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 the
Wichita Facility 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 Wichita Facility 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
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accepted the modified representations and warranties and elected to
purchase the Wichita Facility.
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:
6.1 Buyer is a corporation duly organized, validly existing and
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.
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.
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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 January 20, 1999 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 Lease between Buyer, as lessor, and
Seller, as lessee, relating to the Wichita Facility.
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 any
title policies; (b) all recording fees; and (c) 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 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 the Wichita Facility owing to the fact that the Lease is a so-called
triple-net lease and all costs and expenses which would otherwise be prorated
shall be paid by Seller pursuant to the Lease.
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10. DAMAGE OR DESTRUCTION PRIOR TO CLOSING. If the Wichita Facility, 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 Wichita Facility. If Buyer elects to
purchase the Wichita Facility, 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 Wichita Facility
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 Wichita Facility.
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
Wichita Facility ("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 Wichita
Facility. If Buyer elects to purchase the Wichita Facility, 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 Wichita Facility.
12. SURVIVAL OF REPRESENTATIONS. All representations, warranties,
covenants, conditions, agreements and obligations contained in or relating to
this Agreement shall survive the Closing.
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 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:
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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: Xxxxxx X. Xxxxxx
CEO and President
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
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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.
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.
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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.
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: /s/ Xxxxxxx Xxxxxxx Xxxx
-------------------------------------
Xxxxxxx Xxxxxxx Xxxx, Secretary
"SELLER"
COMMERCIAL EQUITY, INC.,
a Kansas corporation
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Xxxx X. Xxxxxx, Vice-President
"BUYER"
13
EXHIBIT A
LEGAL DESCRIPTION
0000 Xxxx 00xx Xxxxx, Xxxxxxx, Xxxxxx 00000
Xxx 0, Xxxxxxxx 0xx Xxxxxxxx, xx Xxxxxxx, Xxxxxxxx Xxxxxx, Kansas,
containing 18,864 square feet, more or less.
