exhibit4_01.htm


    EXHIBIT
      4.01

    
 

    NINTH
      AMENDMENT TO CREDIT
      AGREEMENT

    


    


    THE
      STEAK N SHAKE COMPANY, an
      Indiana corporation (the “Company”) and FIFTH THIRD BANK, a Michigan
      banking corporation, formerly known as Fifth Third Bank (Central Indiana),
      and
      Fifth Third Bank, Indiana (Central) (the “Bank”), being parties to that certain
      Credit Agreement dated as of November 16, 2001, as previously amended
      (collectively, the “Agreement”), agree to further amend the Agreement by this
      Ninth Amendment to Credit Agreement (this “Amendment”) as follows.

    


    


    1.           
      DEFINITIONS.  All
      defined terms used herein not
      otherwise defined in this Amendment shall have their respective meanings set
      forth in the Agreement.  In addition, the following new definition is
      hereby added to Section 1 of the Agreement as follows:

    


    
      	
              ·  

            	
              “Ninth
                Amendment” means that certain agreement entitled “Ninth Amendment
                to Credit Agreement” entered into by and between the Company and the Bank
                dated as of August 6, 2008, for the purpose of amending this
                Agreement.

            


    

     

    2.           
      THE
      REVOLVING LOAN.  Section
      2(a)(i) and the first sentence of Section 2(a)(ii) of the Agreement are hereby
      amended and restated in their respective entireties as follows:

    


    
      	
               

            	
              (i)

            	
              The
                Commitment -- Use
                of Proceeds.  From the date of the Ninth Amendment and
                until the Revolving Loan Maturity Date, the Bank agrees to make Advances
                (collectively, the “Revolving Loan”) to the Company from time to time
                under a revolving line of credit of amounts not exceeding in the
                aggregate
                principal amount at any time outstanding the amount of Thirty Million
                and
                No/100 Dollars ($30,000,000.00). Proceeds of the Revolving Loan may
                be
                used by the Company only to fund general corporate purposes.
                

            


    

    


    
      	
               

            	
              (ii)

            	
              Method
                of
                Borrowing.  The obligation of the Company to repay the
                Revolving Loan shall be evidenced by a Promissory Note of the Company
                in
                the form of Exhibit
“A”
                attached to the Ninth Amendment (the “Revolving Note”).
                

            


    

     

    3.           
      FINANCIAL
      COVENANTS.  Sections 5(g)(i) and 5(g)(ii) of the Agreement are
      hereby amended and restated in their respective entireties as
      follows:

    


    
      	
               

            	
              (i)

            	
              Maximum
                Ratio of
                Funded Debt to EBITDA. As of the end of each period of four (4)
                consecutive fiscal quarters ending as of the last day of each fiscal
                quarter, the Company shall maintain a ratio of Funded Debt to EBITDA
                of
                not more than 4.75 to 1.00. On and after the date of the Ninth Amendment,
                for purposes of calculating EBITDA, the calculation of earnings shall
                exclude a one-time, non-cash impairment charge of up to $17,500,000
                pre-tax taken during the Company’s third fiscal quarter in 2008.
                

            


    

    


    
      
         

      

      
         

        
          

        

      

      
         

      

    

    
      	
               

            	
              (ii)

            	
              Debt
                Service Coverage
                Ratio.  As of the end of each period of four (4)
                consecutive fiscal quarters ending as of the last day of each fiscal
                quarter, the Company shall maintain a debt service coverage ratio
                of not
                less than .70  to 1.00.  For purposes of this
                covenant, the phrase "debt service coverage ratio" means the ratio
                of: (A)
                the sum of net income, interest expense, plus rent expense, to (B)
                the sum
                of interest expense, rent expense, the Current Portion of all lease
                obligations, plus the Current Portion of all long term debt. The
                term
                “Current Portion” means all payments scheduled to be paid over the twelve
                (12) month period immediately following the date of
                determination.  On and after the date of the Ninth Amendment,
                the calculation of net income shall exclude a one-time, non-cash
                impairment charge of up to $17,500,000 pre-tax taken during the Company’s
                third fiscal quarter in 2008. 

            


    

    


    4.           
      WAIVERS.  The
      Bank hereby waives the
      violations of: (i) Section 5(g)(i) of the Agreement with respect to the failure
      by the Company to maintain a maximum ratio of Funded Debt to EBITDA of not
      more
      than 4.75 to 1.00 for the period ending at the end of the Company’s third fiscal
      quarter in 2008;  and (ii) Section 5(g)(ii) of the
      Agreement  with respect to the failure of the Company to maintain a
      debt service coverage ratio of not less than .70 to 1.00 for the period ending
      at the end of the Company’s third fiscal quarter in 2008, as required therein,
      but strict compliance with these covenants, as amended herein, shall be required
      at all times hereafter.  Nothing in this paragraph shall be construed
      as a waiver of any other term or condition of the Agreement or be construed
      as a
      commitment on the part of the Bank to waive any subsequent violation of the
      same
      or any other term or condition set forth in the Agreement, as amended by this
      Amendment.

    


    5.           
      REPRESENTATIONS
      AND WARRANTIES.  In
      order to induce the Bank to enter into this Amendment, the Company affirms
      that
      the representations and warranties contained in the Agreement are correct as
      of
      the date of this Amendment, except that (i) they shall be deemed to also refer
      to this Amendment as well as all documents named herein and,
      (ii)  Section 3(d)  of  the
      Agreement  shall be deemed also to refer to the most recent audited
      and unaudited financial statements of the Company delivered to the
      Bank.

     

    6.           
      EVENTS
      OF
      DEFAULT.  The Company
      certifies to the Bank that no Event of Default or Unmatured Event of Default
      under the Agreement, as amended by this Amendment, has occurred and is
      continuing as of the date of this Amendment, except as are waived
      herein.

    


    7.           
      CONDITIONS
      PRECEDENT.  As
      conditions precedent to the effectiveness of this Amendment, the Bank shall
      have
      received the following contemporaneously with execution and delivery of this
      Amendment, each duly executed, dated and in form and substance satisfactory
      to
      the Bank:

    


    
      	
              
                (i)

              

            	
               

            	
              This
                Amendment duly executed by the Company.


            


    

    


    
      	
              
                (ii)

              

            	
               

            	
              The
                Revolving Note in the form of Exhibit
                "A"
                attached hereto duly executed by the Company.


            


    

    


    
      	
              (iii)

            	
              The
                Reaffirmation of Guaranty Agreement in the form attached hereto as
Exhibit
                "B"
                duly executed by Steak n Shake Operations, Inc.


            


    

    


    
      	
              (iv)

            	
              The
                Reaffirmation of Guaranty Agreement in the form attached hereto as
Exhibit
                "C"
                duly executed by Steak n Shake Enterprises, Inc.
                

            


    

    


    
      	
              (v)  

            	
              The
                Reaffirmation of Guaranty Agreement in the form attached hereto as
Exhibit
                "D"
                duly executed by SnS Investment
                Company.

            


    

    


    
      
         

      

      
         

        
          

        

      

      
         

      

    

    
      	
              (vi)

            	
              Payment
                by the Company to the Bank contemporaneously with the execution hereof
                of
                an amendment and waiver fee in the amount of $30,000.
                

            


    

     

    
      	
              (vii)

            	
              Resolutions
                of the Board of Directors of the Company authorizing the execution,
                delivery and performance, respectively, of this Amendment, the Revolving
                Note, and all other Loan Documents provided for in this Amendment
                to which
                the Company is a party certified by the Secretary of the Board of
                Directors of the Company as being in full force and effect and duly
                adopted as of the date hereof. 

            


    

    


    
      	
              (viii)

            	
              The
                Certificate of the Secretary of the Board of Directors of the Company
                certifying the names of the officer or officers authorized to execute
                this
                Amendment, the Revolving Note, and all other Loan Documents provided
                for
                in this Amendment to which the Company is a party, together with
                a sample
                of the true signature of each such officer, dated as of the date
                of this
                Amendment. 

            


    

    


    
      	
              (ix)

            	
              Resolutions
                of the Board of Directors of Steak n Shake Operations, Inc., an Indiana
                corporation, authorizing the execution, delivery and performance,
                respectively, of its Reaffirmation of Guaranty Agreement and all
                other
                Loan Documents provided for in this Amendment to which Steak n Shake
                Operations, Inc. is a party certified by the Secretary of the Board
                of
                Directors of Steak n Shake Operations, Inc. as being in full force
                and
                effect and duly adopted as of the date hereof.


            


    

    


    
      	
              (x)

            	
               

            	
              The
                Certificate of the Secretary of the Board of Directors of Steak n
                Shake
                Operations, Inc. certifying the names of the officer or officers
                authorized to execute its Reaffirmation of Guaranty Agreement and
                all
                other Loan Documents provided for in this Amendment to which Steak
                n Shake
                Operations, Inc. is a party, together with a sample of the true signature
                of each such officer, dated as of the date of this Amendment.
                

            


    

    


    
      	
              (xi)

            	
              Resolutions
                of the Board of Directors of Steak n Shake Enterprises, Inc., an
                Indiana
                corporation, authorizing the execution, delivery and performance,
                respectively, of its Reaffirmation of Guaranty Agreement and all
                other
                Loan Documents provided for in this Amendment to which Steak n Shake
                Enterprises, Inc. is a party certified by the Secretary of the Board
                of
                Directors of Steak n Shake Enterprises, Inc. as being in full force
                and
                effect and duly adopted as of the date hereof.


            


    

    


    
      	
              (xii)

            	
              The
                Certificate of the Secretary of the Board of Directors of Steak n
                Shake
                Enterprises, Inc. certifying the names of the officer or officers
                authorized to execute its Reaffirmation of Guaranty Agreement and
                all
                other Loan Documents provided for in this Amendment to which Steak
                n Shake
                Enterprises, Inc. is a party, together with a sample of the true
                signature
                of each such officer, dated as of the date of this Amendment.
                

            


    

    


    
      	
              (xiii)

            	
              Resolutions
                of the Board of Directors of SnS Investment Company, an Indiana
                corporation, authorizing the execution, delivery and performance,
                respectively, of its Reaffirmation of Guaranty Agreement and all
                other
                Loan Documents provided for in this Amendment to which SnS Investment
                Company is a party certified by the Secretary of the Board of Directors of
                SnS Investment Company as being in full force and effect and duly
                adopted
                as of the date hereof. 

            


    

    


    
      
         

      

      
         

        
          

        

      

      
         

      

    

    
      	
              (xiv)

            	
              The
                Certificate of the Secretary of the Board of Directors of SnS Investment
                Company certifying the names of the officer or officers authorized
                to
                execute its Reaffirmation of Guaranty Agreement and all other Loan
                Documents provided for in this Amendment to which SnS Investment
                Company
                is a party, together with a sample of the true signature of each
                such
                officer, dated as of the date of this Amendment.
                

            


    

     

    8.           
      PRIOR
      AGREEMENTS.  The Agreement,
      as
      amended by this Amendment, supersedes all previous agreements and commitments
      made or issued by the Bank with respect to the Loans and all other subjects
      of
      this Amendment, including, without limitation, any oral or written proposals
      which may have been made or issued by the Bank.

     

    9.           
      EFFECT
      OF
      AMENDMENT.  The provisions
      contained herein shall serve to supplement and amend the provisions of the
      Agreement.  To the extent that the terms of this Amendment conflict
      with the terms of the Agreement, the provisions of this Amendment shall control
      in all respects.

     

    10.           
      REAFFIRMATION.  Except
      as expressly amended by
      this Amendment, all of the terms and conditions of the Agreement shall remain
      in
      full force and effect as originally written and as previously
      amended.

     

    11.           
      COUNTERPARTS.  This
      Amendment
      may be executed in any number of counterparts, each of which shall be an
      original and all of which when taken together shall be one and the same
      agreement.

    
 

    IN
      WITNESS WHEREOF, the
      Company and the Bank have executed and delivered in Indiana this Ninth Amendment
      Credit Agreement by their respective duly authorized officers as of August
      6,
      2008.

    


    


    
      	
               

            	
              THE
                STEAK N SHAKE
                COMPANY, an Indiana corporation


            


    

     

    


    
      	
               

            	
              By:

            	
              /s/
                David C. Milne

            	
            


    

     

    
      	
               

            	
              David
                C. Milne, Vice President, General Counsel and Corporate Secretary
                

            


    

    


    
 

     FIFTH
      THIRD BANK, a
      Michigan banking corporation, formerly known as Fifth Third Bank (Central
      Indiana), and Fifth Third Bank, Indiana (Central)

     

    


    
      	
               

            	
              By:

            	
              /s/
                William J.
                Krummen

            


    

    
      	
               

            	
              William
                J. Krummen, Vice President 

            


    

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    


    SCHEDULE
      OF
      EXHIBITS

    


     

    


    
      	
              Exhibit
                "A"

            	
               

            	
              Promissory
                Note (Revolving Loan)($30,000,000.00) (The Steak n Shake Company)
                

            


    

    


    
      	
              Exhibit
                "B"

            	
               

            	
              Reaffirmation
                of Guaranty Agreement (Steak n Shake Operations, Inc.)
                

            


    

    


    
      	
              Exhibit
                "C"

            	
               

            	
              Reaffirmation
                of Guaranty Agreement (Steak n Shake Enterprises, Inc.)
                

            


    

    


    
      	
              Exhibit
                "D"

            	
               

            	
              Reaffirmation
                of Guaranty Agreement (SnS Investment Company)


            


    

    



    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    
Exhibit
    "A"

    PROMISSORY
      NOTE

    (Revolving
      Loan)

    


    Indianapolis,
      Indiana

    $30,000,000.00                                                                                            Dated:
      August 6, 2008

    Final
      Maturity: January 30,
      2009

    


    On
      or before January 30, 2009 (“Final
      Maturity”), THE STEAK N SHAKE
      COMPANY, an Indiana corporation (the “Maker”) promises to pay to the
      order of FIFTH THIRD BANK,
a Michigan banking
      corporation, formerly known as Fifth Third Bank
      (Central Indiana), and Fifth Third Bank, Indiana (Central) (the “Bank”) at the
      principal office of the Bank at Indianapolis, Indiana, the principal sum of
      Thirty Million and 00/100 Dollars ($30,000,000.00), or so much of the principal
      amount of the Loan represented by this Note as may be disbursed by the Bank
      pursuant to the terms of the Credit Agreement described below, and to pay
      interest on the unpaid principal balance outstanding from time to time as
      provided in this Note.

    


    This
      Note evidences indebtedness (the
“Loan”) incurred or to be incurred by the Maker under a revolving line of credit
      extended to the Maker by the Bank under a Credit Agreement dated as of November
      16, 2001, as amended (the “Credit Agreement”).  All references in this
      Note to the Credit Agreement shall be construed as references to that Agreement
      as it may be amended from time to time.  The Loan is referred to in
      the Credit Agreement as the “Revolving Loan.”  Subject to the terms
      and conditions of the Credit Agreement, the proceeds of the Loan may be advanced
      and repaid and re-advanced until Final Maturity.  The principal amount
      of the Loan outstanding from time to time shall be determined by reference
      to
      the books and records of the Bank on which all Advances under the Loan and
      all
      payments by the Maker on account of the Loan shall be recorded.  Such
      books and records shall be deemed primafacie
      to be correct
      as to such matters. The terms “Advance” and “Banking Day” are used in this Note
      as defined in the Credit Agreement.

    


    Interest
      on the unpaid principal
      balance of the Loan outstanding from time to time prior to and after maturity
      will accrue at the rate or rates provided in the Credit
      Agreement.  Prior to maturity, accrued interest shall be due and
      payable on the last Banking Day of each month commencing on the last Banking
      Day
      of August, 2008.  After maturity, interest shall be due and payable as
      accrued and without demand.  Interest will be calculated by applying
      the ratio of the annual interest rate over a year of 360 days, multiplied by
      the
      outstanding principal balance, multiplied by the actual number of days the
      principal balance is outstanding.

    


    The
      entire outstanding principal
      balance of this Note shall be due and payable, together with accrued interest,
      at Final Maturity.  Principal may be prepaid, but only as provided in
      the Credit Agreement.

    


    If
      any installment of interest due
      under the terms of this Note is not paid when due, then the Bank or any
      subsequent holder of this Note may, subject to the terms of the Credit
      Agreement, at its option and without notice, declare the entire principal amount
      of the Note and all accrued interest immediately due and
      payable.  Reference is made to the Credit Agreement which provides for
      acceleration of the maturity of this Note upon the happening of other “Events of
      Default” as defined therein.

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    If
      any installment of interest due
      under the terms of this Note prior to maturity is not paid in full within ten
      (10) days when due, then the Bank at its option and without prior notice to
      the
      Maker, may assess a late payment fee in an amount equal to the greater of $20.00
      or five percent (5%) of the amount past due.  Each late payment fee
      assessed shall be due and payable on the earlier of the next regularly scheduled
      interest payment date or the maturity of this Note.  Waiver by the
      Bank of any late payment fee assessed, or the failure of the Bank in any
      instance to assess a late payment fee shall not be construed as a waiver by
      the
      Bank of its right to assess late payment fees thereafter.

    


    All
      payments on account of this Note
      shall be applied first to expenses of collection, next to any late payment
      fees
      which are due and payable, next to interest which is due and payable, and only
      after satisfaction of all such expenses, fees and interest, to
      principal.

    


    The
      Maker and any endorsers severally
      waive demand, presentment for payment and notice of nonpayment of this Note,
      and
      each of them consents to any renewals or extensions of the time of payment
      of
      this Note without notice. All amounts payable under the terms of this Note
      shall
      be payable with expenses of collection, including attorneys' fees, and without
      relief from valuation and appraisement laws.

    


    This
      Note supersedes and replaces that
      certain Promissory Note (Revolving Loan) made by the Maker payable to the order
      of the Bank dated May 16, 2008, in the principal amount of $45,000,000.00 and
      maturing on January 30, 2009.

    


    This
      Note is made under and will be
      governed in all cases by the substantive laws of the State of Indiana,
      notwithstanding the fact that Indiana conflicts of law rules might otherwise
      require the substantive rules of law of another jurisdiction to
      apply.

    


    
      	
               

            	
              THE
                STEAK N SHAKE
                COMPANY, an Indiana corporation


            


    

     

    By:  /s/
      David C. Milne                 

    
      David
        C.
        Milne, Vice President, General Counsel and Corporate Secretary

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Exhibit
      "B"

     

     

    REAFFIRMATION
      OF GUARANTY
      AGREEMENT

    (Steak
      n
      Shake Operations, Inc.)

    


    The
      undersigned (the “Guarantor”), being the Guarantor under that certain Guaranty
      Agreement dated as of November 16, 2001 (the “Guaranty”), pursuant to which the
      undersigned guaranteed the obligations of THE STEAK N SHAKE COMPANY, an
      Indiana corporation (the “Company”) to FIFTH THIRD BANK, a Michigan
      banking corporation, formerly known as Fifth Third Bank (Central
      Indiana),and  Fifth Third Bank, Indiana (Central) (the “Bank”) under
      the terms  of that certain Credit Agreement (the “Agreement”) dated as
      of November 16, 2001, entered into by and between the Company and the Bank,
      as
      previously amended, hereby consents to the execution of that certain Ninth
      Amendment to Credit Agreement to be entered into by and between the Company
      and
      the Bank dated as of even date herewith (the “Amendment”), hereby agrees that
      the Obligations (as defined in the Guaranty) shall include the obligations
      of
      the Company to the Bank under the Agreement as amended by the Amendment, which
      Amendment, among other things, decreases the amount of the Revolving Loan (as
      defined in the Agreement) to $30,000,000.00 and modifies the method of
      calculating the financial covenants provided thereunder, and the undersigned
      reaffirms its Obligations under, and agrees to be bound by, the terms of the
      Guaranty.

    


    Further,
      the Guarantor acknowledges that while it may be the present practice of the
      Bank
      to obtain the undersigned’s consent to the execution and delivery of the
      Amendment, the Bank may discontinue any such practice in the future and such
      discontinuance shall not be construed as a waiver of the Bank’s right, in its
      discretion, to enter into any further amendments to or grant any further waivers
      of any of the terms and conditions of the Agreement without the consent of
      the
      undersigned, and the Bank’s failure to request or obtain the consent of the
      undersigned to any such amendment or waiver shall not affect the liability
      of
      the undersigned to the Bank under the Guaranty.

    


    


    IN
      WITNESS WHEREOF, the
      undersigned has executed this Reaffirmation of Guaranty Agreement by its duly
      authorized officer as of August 6, 2008.

     

     

     STEAK
      N SHAKE OPERATIONS,
      INC., an Indiana corporation

     

    


    
      	
               

            	
              By:

            	
              /s/
                David C.
                Milne  

            


    

      David
      C.
      Milne, Vice President, General Counsel and Corporate Secretary 


    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    
      
        


        
          	
                  STATE
                    OF INDIANA

                	
                  )
                    

                


        

                  
)
          SS:

        
          	
                  COUNTY
                    OF  Marion     
                    

                	
                  )
                    

                


        

        


      

      Before
        me, a Notary Public in and for said County and State, personally appeared
David C. Milne, the
Vice
        President, General Counsel and
        Corporate Secretary of STEAK N SHAKE OPERATIONS,
        INC., an Indiana corporation, who as such authorized officer acknowledged
        execution of the foregoing Reaffirmation of Guaranty Agreement on behalf
        of said
        corporation this 6th day of
August,
        2008.

      


      
        
          


          Signature:                  /s/
            Lisa
            Blythe                  
 

          Printed:                      Lisa
            Blythe, Notary Public

          My
            Commission Expires:  3/3/2015    
   

          


          My
            County
            of Residence: Johnson      
  


          
            
              
              

            

            
              
              

              
                

              

            

            
              
              

            

          

        

      

    

    Exhibit
      "C"

     

     

    REAFFIRMATION
      OF GUARANTY
      AGREEMENT

    (Steak
      n
      Shake Enterprises, Inc.)

    


    The
      undersigned (the “Guarantor”), being the Guarantor under that certain Guaranty
      Agreement dated as of August 21, 2006 (the “Guaranty”), pursuant to which the
      undersigned guaranteed the obligations of THE STEAK N SHAKE COMPANY, an
      Indiana corporation (the “Company”) to FIFTH THIRD BANK, a Michigan
      banking corporation, formerly known as Fifth Third Bank (Central Indiana),
      and
      Fifth Third Bank, Indiana (Central) (the “Bank”) under the terms  of
      that certain Credit Agreement (the “Agreement”) dated as of November 16, 2001,
      entered into by and between the Company and the Bank, as previously amended,
      hereby consents to the execution of that certain Ninth Amendment to Credit
      Agreement to be entered into by and between the Company and the Bank dated
      as of
      even date herewith (the “Amendment”), and hereby agrees that the Obligations (as
      defined in the Guaranty) shall include the obligations of the Company to the
      Bank under the Agreement as amended by the Amendment, which Amendment, among
      other things, decreases the amount of the Revolving Loan (as defined in the
      Agreement) to $30,000,000.00 and modifies the method of calculating the
      financial covenants provided thereunder, and the undersigned reaffirms its
      Obligations under, and agrees to be bound by, the terms of the
      Guaranty.

    


    Further,
      the Guarantor acknowledges that while it may be the present practice of the
      Bank
      to obtain the undersigned’s consent to the execution and delivery of the
      Amendment, the Bank may discontinue any such practice in the future and such
      discontinuance shall not be construed as a waiver of the Bank’s right, in its
      discretion, to enter into any further amendments to or grant any further waivers
      of any of the terms and conditions of the Agreement without the consent of
      the
      undersigned, and the Bank’s failure to request or obtain the consent of the
      undersigned to any such amendment or waiver shall not affect the liability
      of
      the undersigned to the Bank under the Guaranty.

    


    


    IN
      WITNESS WHEREOF, the
      undersigned has executed this Reaffirmation of Guaranty Agreement by its duly
      authorized officer as of August 6, 2008.

    


     STEAK
      N SHAKE ENTERPRISES,
      INC., an Indiana corporation

    


    
      


      


      
        	
                 

              	
                By:

              	
                /s/
                  David C.
                  Milne  

              


      

       David
        C.
        Milne, Vice President, General Counsel and Corporate Secretary



    

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    
      
        


        
          	
                  STATE
                    OF INDIANA

                	
                  )
                    

                


        

                  
)
          SS:

        
          	
                  COUNTY
                    OF  Marion     
                    

                	
                  )
                    

                


        

        


      

      Before
        me, a Notary Public in and for said County and State, personally appeared
David C. Milne, the
Vice
        President, General Counsel and
        Corporate Secretary of STEAK N SHAKE ENTERPRISES,
        INC., an Indiana corporation, who as such authorized officer acknowledged
        execution of the foregoing Reaffirmation of Guaranty Agreement on behalf
        of said
        corporation this 6th day of
August,
        2008.

      


      
        
          


          Signature:                  /s/
            Lisa
            Blythe                  
 

          Printed:                      Lisa
            Blythe, Notary Public

          My
            Commission Expires:  3/3/2015    
   

          


          My
            County
            of Residence: Johnson      
  



          
            
              
              

            

            
              
              

              
                

              

            

            
              
              

            

          

        

      

    

    Exhibit
      "D"

     

     

    REAFFIRMATION
      OF GUARANTY
      AGREEMENT

    (SnS
      Investment Company)

    


    The
      undersigned (the “Guarantor”), being the Guarantor under that certain Guaranty
      Agreement dated as of November 16, 2001 (the “Guaranty”), pursuant to which the
      undersigned guaranteed the obligations of THE STEAK N SHAKE COMPANY, an
      Indiana corporation (the “Company”) to FIFTH THIRD BANK, a Michigan
      banking corporation, formerly known as Fifth Third Bank (Central Indiana),
      a
      Michigan banking corporation and formerly known as Fifth Third Bank, Indiana
      (Central) (the “Bank”) under the terms  of that certain Credit
      Agreement (the “Agreement”) dated November 16, 2001, entered into by and between
      the Company and the Bank, as previously amended, hereby consents to the
      execution of that certain Ninth Amendment to Credit Agreement to be entered
      into
      by and between the Company and the Bank dated as of even date herewith (the
      “Amendment”), and hereby agrees that the Obligations (as defined in the
      Guaranty) shall include the obligations of the Company to the Bank under the
      Agreement as amended by the Amendment, which Amendment, among other things,
      decreases the amount of the Revolving Loan (as defined in the Agreement) to
      $30,000,000.00 and modifies the method of calculating the financial covenants
      provided thereunder, and the undersigned reaffirms its Obligations under, and
      agrees to be bound by, the terms of the Guaranty.

    


    Further,
      the Guarantor acknowledges that while it may be the present practice of the
      Bank
      to obtain the undersigned’s consent to the execution and delivery of the
      Amendment, the Bank may discontinue any such practice in the future and such
      discontinuance shall not be construed as a waiver of the Bank’s right, in its
      discretion, to enter into any further amendments to or grant any further waivers
      of any of the terms and conditions of the Agreement without the consent of
      the
      undersigned, and the Bank’s failure to request or obtain the consent of the
      undersigned to any such amendment or waiver shall not affect the liability
      of
      the undersigned to the Bank under the Guaranty.

    


    IN
      WITNESS WHEREOF, the
      undersigned has executed this Reaffirmation of Guaranty Agreement by its duly
      authorized officer as of August 6, 2008.

    


    SnS
      INVESTMENT COMPANY, an
      Indiana corporation

     

    
      


      
        	
                 

              	
                By:

              	
                /s/
                  David C.
                  Milne  

              


      

      
        
           David
            C. Milne, Vice President, General Counsel and Corporate
            Secretary


        

      

    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    
      
        


        
          	
                  STATE
                    OF INDIANA

                	
                  )
                    

                


        

                  
)
          SS:

        
          	
                  COUNTY
                    OF  Marion     
                    

                	
                  )
                    

                


        

        


      

      Before
        me, a Notary Public in and for said County and State, personally appeared
David C. Milne, the
Vice
        President, General Counsel and
        Corporate Secretary of STEAK N SHAKE INVESTMENT
        COMPANY, an Indiana corporation, who as such authorized officer
        acknowledged execution of the foregoing Reaffirmation of Guaranty Agreement
        on
        behalf of said corporation this 6th day of August,
        2008.

      


      
        
          


          Signature:                  /s/
            Lisa
            Blythe                  
 

          Printed:                      Lisa
            Blythe, Notary Public

          My
            Commission Expires:  3/3/2015    
   

          


          My
            County
            of Residence: Johnson