IN-N-OUT BURGERS (2) - 2017 - Laserfiche WebLink

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3.2 Representations and Warranties of Buyer Buyer makes the following representations and warranties with respect to the Property, each of which shall survive Close of Escrow. (a) Buyer hereby represents and guarantees that, subject to Permitted Delay (as defined herein), Buyer shall open for business to the public on the Property for one (1) day as an In -N -Out Burgers restaurant (the "Opening Covenant") on or before the date that is eighteen (1 S) months following Close of Escrow (the "Opening Deadline"). If Buyer has not satisfied the Opening Covenant on or before the Opening Deadline, Seller may, as its sole and exclusive remedy, elect to repurchase the Property from Buyer (the "Repurchase Right") pursuant to the terms and conditions below. Seller shall provide written notice to Buyer of its exercise (the "Exercise Notice") within sixty (60) days following the Opening Deadline (the "Exercise Window"). The Exercise Notice shall propose a date for closing which is no less than forty-five (45) days, nor more than sixty (60) days, following the date of the Exercise Notice, with such closing then occurring on a date mutually convenient to both Seller and Buyer (the "Repurchase Closing Date"). If (a) Seller fails to deliver its Exercise Notice to Buyer within the Exercise Window, or (b) Buyer satisfies the Opening Covenant after receipt of the Exercise Notice but prior to the Repurchase Closing Date, then the Repurchase Right shall automatically terminate and be of no further force and effect, and Seller shall deliver to Buyer, upon Buyer's request, a written instrument in recordable form, to be prepared by Buyer and subject to Seller's reasonable approval, which would remove the Repurchase Right from title to the Property. The repurchase deed shall be identical in form to the deed by which title to the Property was conveyed by Seller to Buyer and shall be free and clear of any and all mortgage liens or other evidence of indebtedness. The purchase price to be paid to Buyer by Seller for the Property shall be equal to ninety percent (90%) of the Purchase Price paid by Buyer to Seller under this Agreement. Seller's exercise of the Repurchase Right shall be Seller's sole and exclusive remedy for Buyer's failure to satisfy the Opening Covenant prior to the Opening Deadline. Notwithstanding anything to the contrary set forth herein, if Seller elects to exercise its Repurchase Right, in no event may any consideration be paid to Buyer be in a form other than cash. As used herein, the term "Permitted Delay" shall refer to any delay resulting from acts of God; fire; earthquake; flood; explosion; action of the elements; war; invasion; insurrection; riot; mob violence; sabotage; malicious mischief; inability (notwithstanding good faith and diligent efforts) to procure (or general shortage of) labor, equipment, facilities, materials, or supplies in the open market; failure of transportation; strikes (otherthan any strike resulting from acts of Buyer); lockouts; action of labor unions; condemnation laws; requisition or order of government or civil or military or naval authorities; or any other similar cause to those stated above, not within a Buyer's reasonable control. Notwithstanding anything to the contrary contained herein, in no event shall financial inability constitute Permitted Delay. (b) The execution and delivery of the Agreement by Buyer, Buyer's performance hereunder, and the consummation of the transaction contemplated hereby will not constitute a violation of any order or decree or result in the breach of any contract or agreement to which Buyer is at present a party or by which Buyer is bound; and E:3