ASSIGNMENT AND ASSUMPTION AGREEMENT
Exhibit 10.4
This
Assignment and Assumption Agreement is entered into this 21st day of September,
2005 by and among the following parties, upon the following terms:
| 1. |
Definitions.
In this Assignment, these defined terms are
used:
|
| (a) |
Assignor:
Steak
n Shake Operations, Inc., an Indiana corporation as successor-in-interest
to Steak N Shake, Inc.
|
| (b) |
Assignee:
Xxxxxxxx
Enterprises Emory, LLC
|
| (c) |
Landlord:
JCS
Knoxville Properties, LLC and LKS Knoxville Properties,
Inc.
|
| (d) |
Lease:
Net Land & Building Lease dated June 18, 1999, between Interstate
Management Real Estate Partners, a Kentucky general partnership,
as
predecessor-in-interest to Landlord, and Assignor, as Tenant. A copy
of
the Lease is annexed to this Assignment as Exhibit A and made a part
of
this Assignment by this reference.
|
| (e) |
Premises:
000 Xxxx Xxxxx Xxxx, Xxxxxx, XX, more particularly described on
Exhibit
A.
|
| (f) |
Security
Deposit:
$0
|
| (g) |
Date:
The earlier of September 28, 2005, or the day on which Assignor delivers
possession of the Premises to
Assignee.
|
| 2. |
Assignment
and Delivery of the Premises.
Assignor assigns to Assignee, effective as of the Date, all of Assignor’s
right, title, and interest in (a) the Lease, and (b) the Rent prepaid
under the Lease. Assignor will deliver possession of the Premises
to
Assignee on the Date.
|
| 3. |
Assumption
and Acceptance of the Premises.
Assignee
assumes and agrees to perform each and every obligation of Assignor
under
the Lease, effective as of the Date. Assignee will accept the Premises
in
their condition on the Date.
|
| 4. |
Assignor’s
Warranties.
Assignor warrants to Assignee that (a) the Lease is in full force
and
effect and unmodified, and all Rent (as that term is defined in the
Lease)
will be paid through the Date; (b) Assignor’s interest in the Lease is
free and clear of any liens, encumbrances, or adverse interests of
third
parties except those permitted exceptions shown on Exhibit
B
("Permitted Exceptions"), and the Premises have not been sublet in
whole
or in part; (c) Assignor has full and lawful authority to assign
its
interest in the Lease; and (d) there is no default under the Lease
or any
circumstances which by lapse of time or after notice would be a default
under the Lease. The warranties contained in this paragraph will
be true
as of the date of Assignor’s execution of this Assignment and will be true
as of the Date. The warranties will survive the
Date.
|
| 5. |
Mutual
Indemnification.
Assignor will indemnify Assignee against and hold Assignee harmless
from
any and all loss, liability, and expense (including reasonable attorneys’
fees and court costs) arising out of any breach by Assignor of its
warranties contained in this Assignment, and Assignee will indemnify
Assignor against and will hold Assignor harmless from any loss, liability,
and expense (including reasonable attorneys’ fees and court costs) arising
out of any breach by Assignee of its agreements contained in this
Assignment after the Date. In consideration for, and as inducement
to
Assignor entering into this Assignment with Assignee, Xxxx X. Xxxxxxxx
shall absolutely, unconditionally and irrevocably guaranty to Assignor,
the performance of Assignee’s obligations hereunder, and under the Lease;
the specific form of said guaranty being attached hereto as Exhibit
"C"
and by this reference made a part
hereof
|
| 6. |
Contingencies.
The Assignor’s obligation to assign the Lease and the Assignee’s
obligation to assume Assignor’s obligation thereunder is contingent upon
the following conditions being satisfied or occurring on or before
the
Date.
|
| (a) |
Consummation
of the sale of the real property at 000 Xxxx Xxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxx (åKnoxville Real Estateæ) pursuant to that Contract for the
Purchase and Sale of Real Estate entered into by Assignor and Assignee
and
having the same date hereof.
|
| (b) |
Commencement
of the franchise contemplated by that Multiple Unit Franchise Agreement
entered into by Assignor and Assignee and having the same date
hereof.
|
| (c) |
Consummation
of the sale of Personal Property located on the Premises and the
Knoxville
Real Estate and the Premises pursuant to that Personal Property
Agreement.
|
| (d) |
Assignee
approving, in its sole and absolute discretion, the condition of
title,
survey, legal description and environmental condition of the Real
Estate.
|
| (e) |
Assignee
can obtain on or before the Date, leasehold title insurance policies
insuring Assignee’s leasehold interest in the Real Estate in an amount,
insuring Assignee’s rights in said Real Estate and containing no
exceptions other than current, non-delinquent property taxes, and
the
Permitted Exception. In the event Assignee objects to any matter
of title,
Assignee’s sole remedy, which shall be exercised prior to the Date, shall
be the termination of this Agreement. Assignor shall order an update
of
Title Policy #000-00-000000, issued by lawyer’s Title Insurance Company in
the name of Assignee and an update of the ALTA/ACSM survey prepared
by
Xxxxxx Xxxxx Xxxxxxx & Xxx, on June 4, 1999 as Job No.
22985.
|
| (f) |
Assignee
shall have inspected, and approved to its sole satisfaction, the
Premises
on the Premises. In the event Assignee objects to any condition existing
on the Premises, Assignee’s sole remedy, which shall be exercised prior to
the Date, shall be termination of the
Agreement.
|
| 7. |
Amendment
of Lease.
Assignee may only amend the Lease after the Date with the consent
of
Assignor, and no such amendment will increase the amount of Rent
for which
Assignor is obligated under the
Lease.
|
| 8. |
Joint
and Several Liability.
The liability of Assignor and Assignee under the Lease will be joint
and
several. If the term "Assignee" refers to more than one corporation,
partnership, trust, association, individual, or other entity, their
liability under this Assignment will be joint and
several.
|
| 9. |
Entire
Agreement.
This Assignment embodies the entire agreement of Assignor and Assignee
with respect to the subject matter of this Assignment, and it supersedes
any prior agreements, whether written or oral, with respect to the
subject
matter of this Assignment. There are no agreements or understandings
which
are not set forth in this Assignment. This Assignment may be modified
only
by a written instrument duly executed by Assignor and
Assignee.
|
| 10. |
Binding
Effect.
The terms and provisions of this Assignment will inure to the benefit
of,
and will be binding upon, the successors, assigns, personal
representatives, heirs, devisees, and legatees of Assignor and
Assignee.
|
Assignor
and Assignee have executed this Assignment as of its date.
/s/
Xxxxxxx X.
Manns____________ /s/Xxxxx
X. Milne_____________
Witness Assignor
Signature
/s/
Xxxxxxx X.
Crowley__________ /s/
Xxxx X. Reinwald____________
Witness Assignee
Signature
EXHIBIT
A
Net
Land and Building Lease (Omitted from filing)
EXHIBIT
B
Permitted
Exception (Omitted from filing)
EXHIBIT
C
Guaranty
(Omitted from filing)
