Buffalo Wild Wings 2005 Annual Report Download - page 112

In the event the Agreement is terminated (rather than if it
expires), the price determined by the appraiser(s) will be the
reasonable fair market value of the assets based on their continuing
use in, as, and for the operation of a BUFFALO WILD WINGS Restaurant
and the appraiser will designate a price for each category of asset
(e.g., land, building, equipment, fixtures, etc.), but shall not
include the value of any goodwill of the business, as the goodwill
of the business is attributable to the Trademarks and the System. In
the event that the Agreement expires (rather than if it is
terminated), the price determined by the appraiser(s) will be the
reasonable fair market value of the assets, as stated in the prior
sentence, plus the value of any goodwill of the business,
attributable to your operation of the Restaurant. In the event of
expiration, however, the parties agree that you may elect not to
include the land in the appraisal and option to purchase process. In
this instance, you may elect to lease the land to us or our designee
for a lease term of at least 10 years with two 5−year options to
renew and for a primary rate equal to fair market value according to
the applicable Building Office Management Association Guidelines,
unless otherwise agreed to by the parties.
Within 45 days after our receipt of the appraisal report, we or our
designated purchaser will identify the assets, if any, that we
intend to purchase at the price designated for those assets in the
appraisal report. We or our designated purchaser and you will then
proceed to complete and close the purchase of the identified assets,
and to prepare and execute purchase and sale documents customary for
the assets being purchased, in a commercially reasonable time and
manner. We and you will each pay one−half of the appraiser's fees
and expenses. Our interest in the assets of the Restaurant that are
owned by you or your affiliates will constitute a lien thereon and
may not be impaired or terminated by the sale or other transfer of
any of those assets to a third party. Upon our or our designated
purchaser's exercise of the purchase option and tender of payment,
you agree to sell and deliver, and cause your affiliates to sell and
deliver, the purchased assets to us or our designated purchaser,
free and clear of all encumbrances, and to execute and deliver, and
cause your affiliates to execute and deliver, to us or our
designated purchaser a bill of sale therefor and such other
documents as may be commercially reasonable and customary to
effectuate the sale and transfer of the assets being purchased.
If we do not exercise our option to purchase under this
subparagraph, you may sell or lease the Restaurant premises to a
third party purchaser, provided that your agreement with the
purchaser includes a covenant by the purchaser, which is expressly
enforceable by us as a third party beneficiary, pursuant to which
the purchaser agrees, for a period of 2 years after the expiration
or termination of this Agreement, not to use the premises for the
operation of a restaurant business that has a menu or method of
operation similar to that employed by our company−owned or
franchised restaurants.
C. Claims. You and your Principal Owners and guarantors may not
assert any claim or cause of action against us or our affiliates
relating to this Agreement or the BUFFALO WILD WINGS business after
the shorter period of the applicable statute of limitations or one
year following the effective date of termination of this Agreement;
provided that where the one−year limitation of time is prohibited or
invalid by or under any applicable law, then and in that event no
suit or action may be commenced or maintained unless commenced
within the applicable statute of limitations.
GENERAL PROVISIONS
15. The parties agree to the following provisions:
A. Severability. Should one or more clauses of this Agreement be
held void or unenforceable for any reason by any court of competent
jurisdiction, such clause or clauses will be deemed to be separable
in such jurisdiction and the remainder of this Agreement is valid
and in full force and effect and the terms of this Agreement must be
equitably adjusted so as to compensate the appropriate party for any
consideration lost because of the elimination of such clause or
clauses. It is the intent and expectation of each of the parties
that each provision of this Agreement will be honored, carried out
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