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Exhibit 10-83
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PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
(All Cash Purchase)
THIS AGREEMENT ("Agreement") is entered as of February 8, 1993, by and between
CARL N. KARCHER AND MARGARET M. KARCHER TRUST, under a Declaration of Trust
dated August 17, 1970, as amended ("Seller"), and CARL KARCHER ENTERPRISES,
INC., a California corporation ("Buyer").
RECITALS
A. Seller is the fee owner of that certain parcel of land situated in the
County of Orange, State of California, as more particularly described on
EXHIBIT A as Parcel 1 ("Parcel 1"), which Exhibit is attached hereto and by
this reference incorporated herein. Seller is the Lessee under those certain
Ground Leases for parcels of land situated in the County of Orange, State of
California, as more particularly described on EXHIBIT A as Parcels 2 and 3
(respectively "Parcel 2" and "Parcel 3") (Parcels 1, 2 and 3, as more
particularly described, and collectively referred to as "Land").
B. The Land is currently subject to those certain Land and Building
Leases as described on EXHIBIT B attached hereto and by this reference
incorporated herein, as amended from time to time prior to the date hereof (the
"Land and Building Leases"), between Seller, as Lessor, and Buyer as Lessee.
C. Buyer desires to purchase Seller's fee interest in the Land, building
and improvements with regard to Parcel 1, and Seller's leasehold interest in
the Land and such building and improvements constructed thereon, with regard to
Parcels 2 and 3, and Seller has agreed to sell and convey Seller's respective
interests in the Land, building and improvements to Buyer, on the terms and
conditions set forth below.
NOW, THEREFORE, the parties hereby agree as follows:
1. PURCHASE AND SALE. Upon all of the terms and conditions contained
herein, Buyer hereby agrees to purchase Seller's respective fee and leasehold
interests in the Land from Seller and Seller agrees to sell the Seller's said
interests in the Land to Buyer.
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2. ESCROW. Promptly after this Agreement has been signed and delivered
by and between the parties hereto, Seller shall open an escrow ("Escrow") with
Fidelity National Title Insurance Company, 2100 Southeast Main Street, Suite
400, Irvine, California ("Escrow Holder"), by delivering a fully executed copy
of this Agreement to Escrow Holder. The parties agree to be bound by the
standard escrow General Provisions attached hereto as EXHIBIT C, and shall
execute and deliver to Escrow Holder such other reasonable supplemental escrow
instructions or other instruments as may be required by Escrow Holder or the
parties hereto in order to consummate the sale described herein. The attached
EXHIBIT C and/or the printed portions of any such instructions shall not amend
or supersede any provision of this Agreement.
3. CLOSING OF ESCROW. Subject to the satisfaction of all conditions
precedent set forth herein, the closing ("Closing") of the purchase and sale of
the interests in the Land shall take place through Escrow on or before March
15, 1993, or such other date as the parties may mutually agree in writing (the
"Closing Date"). The sale of the interest in each Parcel shall close as an
individual transaction and is not dependent on closing of the other sites.
4. PURCHASE PRICE. The purchase price for the Land (the "Purchase
Price") shall be set out as follows:
Parcel 1: One Million Sixty Three Thousand Four Hundred Thirty Four Dollars
($1,063,434.00).
Parcel 2: Three Hundred Forty Six Thousand Seven Hundred Sixty Eight Dollars
($346,768.00).
Parcel 3: Four Hundred Ninety Eight Thousand Three Hundred Forty One Dollars
($498,341.00).
The Purchase Price shall be payable through Escrow as follows:
(a) DEPOSIT. Concurrently with Buyer's execution and delivery of
this Agreement, Buyer shall deliver to Escrow Holder, for immediate release to
Seller, the sum of SEVEN HUNDRED THOUSAND AND 00/100 Dollars ($700,000.00), TWO
HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) shall be applicable to Parcel 1,
ONE HUNDRED FIFTY THOUSAND DOLLARS ($150,000.00) shall be applicable to Parcel
2, and THREE HUNDRED THOUSAND DOLLARS ($300,000.00) shall be applicable to
Parcel 3, which sum shall be held by Seller and applied towards the Purchase
Price upon Closing, subject, however, to being disbursed to Seller as
liquidated damages as provided in Section 9(b) below or returned to Buyer as
provided in Section 9(a) or 17 below. No interest shall accrue or be paid to
Buyer with
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respect to said deposit.
(b) CASH AT CLOSING. The balance of the Purchase Price, together
with any additional amounts and costs chargeable to Buyer as provided below,
shall be deposited by Buyer into Escrow not less than twenty-four (24) hours
prior to the Closing Date of each escrow, and shall be disbursed by Escrow
Holder to Seller upon the Closing, less the costs and prorations chargeable to
Seller under Section 5 below.
5. COSTS AND PRORATIONS.
(a) CLOSING COSTS. Buyer and Seller shall each pay one-half (1/2) of
the fees and charges of Escrow Holder. Seller shall bear the cost of all
documentary transfer taxes, and the premium for the title Policies. Buyer
shall pay the entire cost of, and shall be responsible for obtaining, any
extended coverage, ALTA owner's or Lender's or other title policy or
endorsements in excess of the standard coverage owner's title policy to be
provided by Seller, together with any land surveys required in connection
therewith. Buyer and Seller shall each bear their own respective legal,
accounting and other consultant fees, charges and costs, if any, incurred in
connection with this transaction. All recording costs or fees and all other
costs or expenses not otherwise provided for in this Agreement shall be
apportioned or allocated by Escrow Holder between Buyer and Seller in the
manner customary in Orange County.
(b) TAXES AND ASSESSMENTS. Escrow Holder shall calculate the
proration of all current real property taxes and all general and special bonds
and assessments on the Land between Buyer and Seller as of the Closing Date.
Except for such taxes, bonds and assessments for that portion of Parcel 1 not
under a Land and Building Lease to Buyer, Escrow Holder shall not be concerned
with charging the parties for such prorations of any such taxes and assessments
through Escrow since the Lessee under the Land and Building Lease, who is the
same as, or is affiliated or under common control with Buyer, is required to
pay all such taxes under the terms of the Ground Lease. Any real property
taxes levied under the Supplemental Tax Roll as a result of this sale, whether
prior to the normal assessment date or otherwise, shall be paid solely by
Buyer. Escrow Holder shall prorate and charge Buyer for all rental, common
area maintenance charges, if any, and other sums due and unpaid to Seller under
the Land and Building Leases of Buyer as of the Closing Date, and Seller shall
provide such information as Escrow Holder may request to enable Escrow Holder
to calculate such proration. Escrow Holder shall additionally prorate and
charge Seller for all rental, common area maintenance charges,
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if any, and other sums paid to Seller in advance under that certain Land and
Building Lease for that portion of Parcel 1 not occupied by Buyer. The parties
agree that if any rental sum under the Land and Building Lease is calculated
based on a percentage of sales, revenue or income from the leased premises and
if such rental sum cannot readily be determined for the then - current
reporting period as of the Closing Date, then such sum shall be deemed
unchanged from the last prior reporting period under the Land and Building
Lease and Seller shall instruct Escrow Holder as to the amount thereof.
6. CONDITIONS TO CLOSING. The respective obligations of Buyer and Seller
to complete the purchase and sale of the Land are subject to satisfaction of
the conditions precedent set forth below for their respective benefit at or
prior to Closing.
(a) TRANSFER AND POSSESSION. Seller shall deliver through Escrow
an executed and recordable Grant Deed in the form attached hereto as EXHIBIT D
(the "Grant Deed"), an executed and recordable Termination of Land and Building
Lease in the form attached hereto as EXHIBIT E (the "Termination") for such
Lease as may exist between Buyer and Seller herein, and an executed and
recordable Assignment of Land and Building Lease in the form attached hereto as
EXHIBIT F (the "Assignment") for such additional lease as may exist, sufficient
to convey insurable title to Buyer for Parcel 1 subject only to the matters
described in Section 6(c).
Seller shall deliver through Escrow executed and recordable
Terminations of Land and Building Lease in the form attached hereto as EXHIBIT
E (the "Termination") for the Land and Building Leases currently existing
between Buyer as Lessee and Seller as Lessor,executed and recordable
Assignments of Ground Lease in the form attached hereto as EXHIBIT F (the
"Assignment"), and consent from the Ground Lessor to any such Assignment as may
be required under the Ground Leases, which shall be sufficient to convey
insurable title to Buyer for parcels 2 and 3 subject only to the matters
described in Section 6(c).
(b) TITLE APPROVAL. Buyer shall obtain from Escrow Holder
preliminary title reports covering the respective interest in the Land (the
"Title Reports"). Buyer shall take title to the Land pursuant to this
Agreement subject to matters described in Section 6(c), and to all other
matters of record shown on said Title Report or listed as exceptions to
coverage therein except such matters as Buyer shall expressly disapprove by
giving written notice to Seller on or before ten business (10) days following
Buyer's receipt of the respective Title Report and underlying documents, (the
"Approval Date"), which notice shall specify reasonable grounds for each such
matter so disapproved. Seller shall have ten business
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(10) days from its receipt of such notice of disapproval within which to notify
Buyer in writing as to whether it shall cause the removal of such disapproved
exception to coverage under the respective Title Policy on or before the
Closing Date. Seller shall have no obligation to remove any such exception
except, if applicable, the lien of the Existing Deed of Trust (as defined in
Section 6(e) below) which shall be removed by Seller concurrently with the
Closing. The failure by Seller to give Buyer written notice of its intention
to remove any exception to coverage under the respective Title Policy
disapproved by Buyer in the manner herein provided shall be deemed an election
by Seller not to remove such exception. In the event that Seller does not so
notify Buyer of its election to cause the removal of such disapproved
exception. In the event that Seller does not so notify Buyer of its election
to cause the removal of such disapproved exception, Buyer may terminate this
Agreement, pursuant to Section 9(a) below, by written notice to Seller and
Escrow Holder within ten (10) days after the end of the period for Seller to
respond; otherwise, Buyer shall be deemed to have waived its disapproval of
such exception to coverage under the respective Title Policy and approved same.
Should Buyer fail to disapprove any matter affecting the condition of title or
constituting an exception to coverage under the respective Title Policy by the
Approval Date as set forth above, such matter and/or exception shall be deemed
approved by Buyer.
(c) TITLE CONDITION AT CLOSING. Seller shall cause Escrow Holder
to deliver or commit to deliver to Buyer a standard coverage CLTA Owner's
Policy of Title Insurance for each Parcel (the "Title Policy") dated as of the
Closing, insuring Buyer in an amount equal to the portion of the Purchase Price
allocated in Section 4 to such Parcel, and showing title to the Land vested in
Buyer subject only to:
(i) Real Property taxes and all unpaid general and
special bonds or assessments;
(ii) As to Parcel 1, all matters set forth in the Grant
Deed;
(iii) As to Parcels 2 and 3, the respective master leases;
(iv) The printed exceptions contained in the Title Policy;
(v) All recorded covenants, conditions and restrictions
and other matters shown on the Title Report that are
set forth above or that have been
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approved or deemed approved by Buyer;
(vi) All other matters affecting title to the Land
approved in writing or deemed approved by Buyer,
which approval shall not unreasonably be withheld,
delayed or conditioned.
(d) ESTOPPEL CERTIFICATE. Seller shall, without charge or expense
to Buyer, execute, acknowledge, and deliver a statement in writing (i)
certifying that the respective Ground Leases, as amended, are unmodified and in
full force and effect (or, if modified, stating the nature of such modification
and certifying that the Lease, as so modified, is in full force and effect) and
the date to which the Rental and other charges are paid in advance, if any, and
(ii) acknowledging that there are not any uncured defaults of which the
acknowledging party has knowledge, or specifying such defaults if any are
claimed. Any such statement may be conclusively relied upon by Buyer and any
prospective assignee, sublessee or encumbrancer of the Premises.
(e) EXISTING DEEDS OF TRUST.
As to Parcel 1:
The Land described as Parcel 1 may currently be encumbered by a deed of trust
to Commonwealth Land Title Company, as Trustee, for the benefit of The
Mitsubishi Bank of California, a California corporation, which deed of trust
was recorded December 30, 1986, as Instrument No. 86-651152 in the Official
Records of Orange County, California (the "Existing Deed of Trust"). If so,
Escrow Holder is hereby instructed to cause the Existing Deed of Trust to be
reconveyed as to the Land at the expense of Seller and concurrently with the
Closing.
As to Parcel 2:
That Land described as Parcel 2 may currently be encumbered by a Deed of Trust
to United California Bank, a California corporation, which Deed of Trust was
recorded August 21, 1980 as Instrument No. 25490 in the official records of
Orange County, California (the "Existing Deed fo Trust"). Escrow Holder is
hereby instructed to cause the Existing Deed of Trust to be reconveyed as to
the Seller's respective interest in the Land at the expense of Seller and
concurrently with the Closing.
As to Parcel 3:
That Land described as Parcel 3 may currently be encumbered by a Deed of Trust
to Heritage Bank, a California corporation as
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Trustee, for the benefit of Heritage Bank, a California corporation, which Deed
of Trust was recorded April 30, 1976 as Instrument No. 34379 in the official
records of Orange County, California (the "Existing Deed of Trust"). Escrow
Holder is hereby instructed to cause the Existing Deed of Trust to be
reconveyed as to the Seller's respective interest in the Land at the expense of
Seller and concurrently with the Closing.
7. NO ASSIGNMENT BY BUYER PERMITTED. Buyer may not assign its interest
under this Agreement without the express prior written consent of Seller, which
consent may be given or withheld by Seller in its sole discretion, and any such
attempted assignment made in violation of this provision shall be null and
void. Notwithstanding the foregoing, Seller agrees not to unreasonably
withhold its consent to an assignment by Buyer of its rights hereunder to an
entity owned or controlled by or under common control with Buyer. Promptly
after any such assignment, Seller shall be furnished with copies of the final
executed assignment documents.
8. TIME OF THE ESSENCE AND ESCROW CANCELLATION. Time is of the essence
of every provision of this Agreement in which time is an element. Failure by
any party to perform any obligation within the time and on the terms and
conditions required hereunder shall discharge the other party's duties and
obligations to perform hereunder upon written notice or demand from the other
party. However, if Escrow is not in condition to close by the agreed Closing
Date, Escrow Holder shall continue to comply with the instructions contained
herein until a written demand has been made by a party entitled to do so for
the cancellation of Escrow. Escrow Holder shall notify all other parties to
this Agreement of any such demand, and shall immediately cancel Escrow without
any further instructions from any party.
9. TERMINATION RIGHTS. The parties shall have the right to terminate
this Agreement as follows:
(a) BUYER'S RIGHT. If Seller fails to perform any covenant when
due hereunder, or if Seller is not in a position by the Closing Date to convey
title to the respective fee and leasehold interest in the Land subject only to
the matters described in Section 6(c) above, and Buyer is unwilling to accept
such title to the respective interest in the Land as Seller may be able to
convey, then Buyer may terminate this Agreement and the Escrow by giving
written notice thereof to Seller and Escrow Holder, or Buyer may waive
disapproval and acquire respective interest in the Land in accordance with the
terms hereof. In the event of any such termination, or if Buyer duly
terminates this Agreement pursuant to
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Section 6(b) above, Seller and/or Escrow Holder shall promptly return to Buyer
all sums theretofore delivered by Buyer pursuant to Section 4 above and held by
either of them. Additionally, Escrow Holder shall return all instruments to
the parties who deposited same, and all title and escrow cancellation charges
shall be divided equally between the parties (except that Seller, or Buyer, as
the case may be, shall pay all of such cancellation charges if the termination
is due to said party's default).
(b) SELLER'S RIGHT/LIQUIDATED DAMAGES. If Buyer fails to deposit
any required sums by the prescribed time or in the prescribed manner, or to
perform any other covenant when due hereunder, or if Buyer commits any other
breach of this Agreement, the Seller, at its option, may terminate this
Agreement and Escrow by giving written demand to Buyer and Escrow Holder.
Thereupon Escrow shall be cancelled, all instruments shall be returned to the
respective parties who deposited same, and Buyer shall pay all title and escrow
cancellation charges and fees.
IN ADDITION, THE PARTIES AGREE THAT SELLER SHALL HAVE SUSTAINED DAMAGES
RESULTING FROM BUYER'S FAILURE TO PERFORM WHICH DAMAGES ARE DIFFICULT AND
IMPRACTICABLE TO ASCERTAIN. ACCORDINGLY, SELLER SHALL BE ENTITLED TO RETAIN A
PORTION OF THE DEPOSIT SPECIFIED IN SECTION 4(A) ABOVE, AS SUCH PORTION OF SUCH
DEPOSIT IS ALLOCATED FOR EACH SUCH PARCEL HEREIN, AS A LIQUIDATED AND
REASONABLE ESTIMATE OF SUCH DAMAGES FOR BUYER'S BREACH OR FAILURE TO COMPLETE
THE PURCHASE OF THE LAND AS PROVIDED HEREINABOVE, PURSUANT TO CALIFORNIA CIVIL
CODE SECTIONS 1671 AND 1677; PARCEL 1, $2,000; PARCEL 2, $2,000; PARCEL 3,
$2000.
________________________ ______________________
Buyers Initials Seller's Initials
10. FURTHER DOCUMENTS AND ACTS. Each of the parties hereto agrees to
cooperate in good faith with each other, and to execute and deliver such
further documents and perform such other acts as may be reasonably necessary or
appropriate to consummate and carry into effect the transactions contemplated
under this Agreement.
11. BUYER'S ACKNOWLEDGMENTS. Buyer hereby acknowledges and agrees to each
of the following provisions:
(a) RECEIPT OF DOCUMENTS. Buyer has received and read,
understands and agrees to be bound by the terms and conditions of the Ground
Leases as they apply to Parcels 2 and 3, and the Land and Building Lease as it
applies to a portion of parcel 1.
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(b) PRIOR INVESTIGATIONS. Buyer agrees that it has fully
inspected the Land and the improvements constructed thereon, is familiar with
the terms and conditions of the Ground Leases as they apply to Parcels 2 and 3
and the Land and Building Lease as it applies to a portion of Parcel 1, and the
condition of the improvements, and that it is purchasing the Land on an "as is"
basis. Notwithstanding the foregoing, Buyer, its authorized agents and
representatives shall have the right to enter onto Parcel 1 and make any and
such inspections, appraisals and studies, at Seller's sole cost and expense, to
determine the existence of contaminants in the soils or structures as follows:
(i) A soils investigation performed by a licensed soil engineer, including
but not limited to Phase I testing, and Phase II testing if required,
certifying that the Premises are not in violation of EPA standards or
regulations or such standards or regulations promulgated by any other
governmental entity having authority therefor, and that the Parcel is
otherwise free from subsurface soils contamination, including
hydrocarbon contaminants, hazardous waste and/or toxic pollutants.
(ii) Buyer shall, within fifteen (15) days from the execution date hereof,
cause to have such testing of the existing office structure on Parcel
1 completed to determine the extent, if any, of contamination present
in the structure.
Should any contamination be present, Seller, at Seller's sole cost and expense,
shall remove said contaminated materials as soon as reasonably possible, prior
to the close of escrow on Parcel 1. If Seller should determine, in Seller's
reasonable judgment, that the cost of removal of such contamination in cost
prohibitive to Seller, Seller shall have the option of terminating this
Agreement as it applies to Parcel 1, and refunding to Buyer the deposit
allocated to such Parcel.
12. NON-FOREIGN STATUS OF SELLER. In accordance with Section 1445 of the
Internal Revenue Code, Seller hereby represents, warrants and certifies to
Buyer, under penalty of perjury, that Seller is not now, and at the Closing
will not be, a "foreign person) (that is, a foreign corporation, foreign
partnership, foreign trust or foreign estate, as those terms are defined in the
Internal Revenue Code and regulations promulgated thereunder); that Seller's
tax identification number is 13-3177751; and that Buyer need not withhold tax
at the Closing as a result of this transfer.
13. FIRST RIGHT OF REFUSAL. It is expressly agreed that Buyer shall have
the right to sell each of the Parcels herein, or any
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portion thereof; however, Seller shall have the right of first refusal to
purchase each of the Parcels, or any portion thereof, on the same terms and
conditions as that established as a bona fide selling price between Buyer and a
third party. Before Buyer sells the Parcel or any portion thereof to a third
party, Buyer shall first give a written fifteen (15) day notice to Seller of
Buyer's intention to do so. Said notice shall specify the terms and conditions
upon which it is intended to make such sale and shall contain an offer to sell
to Seller upon said terms. Seller shall have fifteen (15) days after receipt
of said notice in which to accept or reject said offer. Buyer shall not sell
the Parcel to a third party at a lower price or on terms more favorable than
those specified to Seller. Any sale not in conformity with this paragraph
shall be null and void. If Seller shall not give Buyer written notice of
acceptance of the offer within said fifteen (15) days, Buyer shall have the
right to sell to a third party at the price and on the terms and conditions of
said offer.
14. SURVIVABILITY OF COVENANTS. All covenants of Buyer or Seller which
are expressly intended hereunder to be performed in whole or in part after the
Closing, and all representations, warranties and indemnities by either party to
the other, shall survive the Closing and be binding upon and inure to the
benefit of the respective parties hereto and their respective heirs, successors
and permitted assignees. Any agreements, understandings, warranties or
representations not expressly contained herein shall in no way bind either
Seller or Buyer. Seller and Buyer each expressly waives any right of
rescission and all claims for damages by reason of any statement,
representation, warranty, promise and/or agreement, if any, not contained in or
attached to this Agreement.
15. BROKERS' COMMISSIONS. Each of the parties represents to the other
that no brokerage commission, finder's fee or other similar compensation of any
kind is due or owing to any person or entity in connection with the
transactions covered by this Agreement. Each party agrees to and does hereby
indemnify and hold the other harmless from and against any and all costs,
liabilities, losses, damages, claims, causes of action or proceedings which may
result from any broker, agent, finder, or similar person, licensed or
otherwise, claiming through, under or by reason of the conduct of the
indemnifying party in connection with the transactions covered by this
Agreement.
16. WAIVER, CONSENT AN REMEDIES. Each provision of this Agreement to be
performed by Buyer and/or Seller shall be deemed both a covenant and a
condition and shall be a material consideration for the other party's
performance hereunder, and any breach thereof by
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either party shall be deemed a material default hereunder by such patty.
Either party may specifically and expressly waive in writing any portion of
this Agreement or any breach thereof, but no such waiver shall constitute a
further or continuing waiver of any preceding or succeeding breach of the same
or any other provision. A waiving party may at any time thereafter require
further compliance by the other party with any breach or provision so wived.
The consent by one party to any act by the other for which such consent was
required shall not be deemed to imply consent or waiver of the necessity of
obtaining such consent for the same or any similar acts in the future. No
waiver or consent shall be implied from silence or any failure of a party to
act, except as otherwise specified in this Agreement. All rights, remedies,
undertakings, obligations, options, covenants, conditions and agreements
contained in this Agreement shall be cumulative and no one of them shall be
exclusive of any other. Except as otherwise specified herein, either party may
pursue any one or more of its rights, options or remedies hereunder or may seek
damages or specific performance in the event of the other party's breach
hereunder, or may pursue any other remedy at law or equity, whether or not
stated in this Agreement.
17. ATTORNEYS' FEES. In the event of any declaratory or other legal or
equitable action instituted between Seller, Buyer and/or Escrow Holder in
connection with this Agreement, then as between Buyer and Seller the prevailing
party shall be entitled to recover from the losing party all of its costs and
expenses, including court costs and reasonable attorneys' fees.
18. CONDEMNATION. If at any time prior to the Closing, legal proceedings
are commenced under the power of eminent domain with respect to allow any
Parcel or portion thereof, either Seller or Buyer may terminate this Agreement
and cancel Escrow as to such Parcel by giving written notice to Escrow Holder
and the other party. Thereupon, all conveyance instruments relating to such
Parcel shall be returned to the respective parties who deposited same, Buyer
and Seller shall each pay one-half (1/2) of all title and Escrow cancellation
charges, all other funds then deposited by Buyer in Escrow and any funds paid
outside of Escrow by Buyer shall be returned to Buyer, and each party shall be
excused from any further obligations hereunder or liability to the other party.
In the event of such termination, Buyer shall have no right to participate in
the receipt of any condemnation proceeds from the taking; provided, however,
that the rights of Seller and the Lessee under the Lease applicable to the
affected Parcel in the event of condemnation shall continue in full force and
effect. Should neither party elect to terminate this Agreement as aforesaid,
there shall be no price adjustment as a result of the taking, and Seller
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shall not be entitled to any condemnation award as may be attributable to such
Parcel.
19. DAMAGE OR DESTRUCTION. In the event any of the improvements on any
Parcel are damaged or destroyed prior to the Closing, Buyer agrees that it
shall bear the risk of such loss and shall have no right to terminate this
transaction; provided, however, that as of the Closing Date, Buyer shall be
entitled to all sums, if any, payable to the Lessor under the respective Lease
as the result of such damage.
20. AUTHORITY TO BIND. Each of the individuals signing this Agreement on
behalf of any entity thereby specifically represents and warrants that such
signatories, either collectively or individually, have the authority to bind
that entity to all provisions of this Agreement.
21. NOTICES. Any notice, request, demand, consent, approval or other
communication required or permitted hereunder or by law shall be validly given
or made only if in writing and delivered in person or by independent courier
service to the other party at the address(es) below, or deposited in the United
States mail, duly certified or registered (return receipt requested), postage
prepaid, and addressed to the party for whom intended, as follows:
If to Seller: CARL N. KARCHER and
MARGARET M. KARCHER TRUST
P. O. Box 61021
Anaheim, CA 92803
copy to: LEWIS, D'AMATO, BRISBOIS & BISGAARD
650 Town Center Drive, Suite 1400
Costa Mesa, CA 92626
Attn: Bruce M. Boyd, Esq.
If to Buyer: Carl Karcher Enterprises, Inc.
P. O. Box 4349
Anaheim, CA 92803
Attn: Leasing/Escrow Department
Any party may from time to time, by written notice to the other, designate a
different address which shall be substituted for that specified above. If any
notice or other document is sent by mail as aforesaid, the same shall be deemed
fully delivered and received forty-eight (48) hours after mailing as provided
above.
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22. GENDER AND NUMBER. In this Agreement (unless the context requires
otherwise), the masculine, feminine and neuter genders and the singular and the
plural shall be deemed to include one another, as appropriate.
23. ENTIRE AGREEMENT. This Agreement and its exhibits constitute the
entire agreement between the parties hereto pertaining to the subject matter
hereof, and the final, complete and exclusive expression of the terms and
conditions thereof. Prior agreements, representations, negotiations and
understandings of the parties hereto, oral or written, express or implied, are
hereby superseded and merged herein.
24. CAPTIONS. The captions used herein are for convenience only and are
not a part of this Agreement and do not in any way limit or amplify the terms
and provisions hereof.
25. GOVERNING LAW. This Agreement and the exhibits attached hereto have
been negotiated and executed in the State of California and shall be governed
by and construed under the laws of the State of California.
26. INVALIDITY OF PROVISIONS. If any provision of this Agreement as
applied to either party or to any circumstance shall be adjudged by a court of
competent jurisdiction to be void or unenforceable for any reason, the same
shall in no way affect (to the maximum extent permissible by law) any other
provision of this Agreement, the application of any such provision under
circumstances different from those adjudicated by the court, or the validity or
enforceability of the Agreement as a whole.
27. AMENDMENTS. No addition to or modification of any provision contained
in this Agreement shall be effective unless fully set forth in writing and
signed by both Buyer and Seller.
28. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
29. NO RECORDATION. Neither Buyer nor Seller shall, without the consent
of the other, record this Agreement, or a short form or memorandum thereof, or
take any other action which would materially
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and adversely affect the marketability of Seller's title to the Land.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
SELLER: BUYER:
- - ------- ------
CARL AND MARGARET M KARCHER CARL KARCHER ENTERPRISES, INC.
TRUST, under a Declaration of a California corporation
Trust dated August 17, 1970,
as amended
/s/ CARL N. KARCHER /s/ RICHARD C. CELIO
BY: _______________________ BY: _______________________
Richard C. Celio
Vice President/
Corporate Counsel
/s/ LOREN PANNIER
BY: _______________________ BY: _______________________
Loren Pannier
Group Vice President
Finance/Administration
Page 14
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EXHIBIT "A"
Legal Description
Parcel 1:
Lots 1, 2, 3, 4, 5, and 6 in Block 1 of Tract No. 856, in the City of
Garden Grove, as shown on a map thereof recorded in book 26, page 8,
Miscellaneous Maps, records of said Orange County.
Parcel 2:
The South 100.00 feet of the North 335.00 feet of the West 150.00 feet
of the East 200.00 feet of the Northeast Quarter of the Northeast
Quarter of Section 29, Township 4 South, Range 10 West, partly in the
Rancho Los Coyotes and partly in the Rancho Las Bolsas, in the City of
Garden Grove, County of Orange, State of California, as per map
recorded in Book 51, Page 10 of Miscellaneous Maps, in the Office of
the County Recorder of said County.
Parcel 3:
All that certain land situated in the State of California, County of
Orange, described as follows:
That portion of allotments in decree of partition of the
Rancho Canon de Santa Ana in the County of Orange, State of
California, recorded in Case No. 1978 of the 17th Judicial District
Court of California, a certified copy of which was recorded February
8, 1974 in book 28, page 158 of Deed in the office of the County
Recorder of Los Angeles County, California described as follows:
Parcel No. 3, as shown on a Map filed in book 56, page 2 of
Parcel Maps in the office of the County Recorder of Orange County,
California.
Page 1
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EXHIBIT "B"
A. Parcel 1:
That certain fee property identified as Parcel 1 on Exhibit
"A" herein, and a portion of which may also be referred to as CKE Unit
#5, which parcel 1 is subject to:
(i) a Land and Building Lease dated December 1, 1978 by and between
Carl N. Karcher, Trustee, "Lessor", and Carl Karcher Enterprises,
Inc., "Lessee" ("Land and Building Lease") as such Land and Building
Lease was amended by that certain First Amendment to Lease dated June
12, 1979, and that Second Amendment to Lease dated March 26, 1990;
(ii) a Land and Building Lease dated June 1, 1986, by and between Carl
N. Karcher and Margaret M. Karcher Trust, "Lessor", and Dental Finance
Company, "Lessee" (Land and Building Lease").
B. Parcel 2:
That certain leasehold property identified as Parcel 2 on
Exhibit "A" herein, and which may also be referred to as CKE Unit #6,
which Parcel 2 is subject to:
(i) that certain Ground Lease dated August 10, 1979, by and between
John C. Quantannens, Trustee, "Lessor", and Carl N. Karcher, Trustee
under trust dated August 17, 1970, "Lessee", ("Ground Lease") as such
Ground Lease was amended by that certain First Amendment to Ground
Lease dated August 12, 1970;
(ii) that certain Land and Building Lease dated February 15, 1980, by
and between Carl N. Karcher, Trustee, under the Trust dated August 17,
1970, "Lessor", and Carl Karcher Enterprises, Inc., a California
corporation, "Lessee", ("Land and Building Lease") as such Land and
Building Lease was amended by that certain Rental Commencement
Memorandum executed September 4, 1980, that certain First Amendment to
Lease dated March 2, 1981 and that certain Second Amendment to Lease
executed March 26, 1990.
C. Parcel 3:
That certain leasehold property identified as Parcel 3 on
Exhibit "A" herein, and which may also be referred to as CKE Unit
#140, which Parcel 3 is subject to:
(i) that certain Ground Lease dated September 3, 1974, by and between
Raymond G. Spehar and Estelle K. Spehar and Marcia Ann Halligan,
"Lessor", and Carl Karcher Enterprises, Inc., a California
corporation, "Lessee" ("Ground Lease") as such Ground Lease was
amended by that certain First Amendment to Lease dated August 5, 1975,
and that certain Assignment of Lease dated April 20, 1976 wherein the
Ground Lease was assigned by Carl Karcher Enterprises, Inc. to Carl N.
Karcher, Trustee under a trust dated August 17, 1970 and as such Lease
was further amended by that certain Amended and Restated Ground Lease
dated November 3, 1980, and that certain Second Amendment of Ground
Lease executed November 6, 1986;
Page 2
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EXHIBIT "B" (page 2)
(ii) that certain Land and Building Lease dated April 21, 1976 by and
between Carl N. Karcher, Trustee under the Trust dated August 17,
1970, "Lessor", and Carl Karcher Enterprises, Inc., a California
corporation, "Lessee", ("Land and Building Lease") as such Land and
Building Lease was amended by that certain Amendment to Lease dated
January 28, 1983, that certain Second Amendment of Land and Building
Lease dated November 6, 1986, and that Third Amendment to Land and
Building Lease executed on March 26, 1990.
Page 3
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EXHIBIT "C"
FIDELITY NATIONAL TITLE
Escrow Instructions
(continued)
GENERAL PROVISIONS
1. DEPOSIT OF FUNDS
Section 12413.1, California Insurance Code, commonly known as Assembly
Bill 512, became effective January 1, 1990. This legislation deals with the
disbursement of funds deposited with any title entity acting in an escrow or
sub escrow capacity. The law requires that all funds be deposited and collected
by the title entity's escrow and/or sub escrow account prior to disbursement of
any funds. Some methods of funding may subject funds to a holding period which
must expire before any funds may be disbursed. In order to avoid any such
delays, all funding should be done through wire transfer, certified check,
cashier's check or teller's check.
All funds received in this escrow shall be deposited with other escrow
funds in a general escrow account or accounts of FIDELITY NATIONAL TITLE, with
any state or national bank, and may be transferred to any other such general
escrow account or accounts. Said funds will not earn interest unless otherwise
specifically stated herein. All disbursements shall be made by check of
FIDELITY NATIONAL TITLE.
If for any reason funds are retained or remain in escrow, you are to
deduct therefrom a reasonable monthly charge as custodian thereof of not less
than $10.00 per month.
2. PRORATIONS AND ADJUSTMENTS
All prorations and/or adjustments called for in this escrow are to be
made on the basis of a thirty (30) day month unless otherwise instructed in
writing. Re-prorations, if necessitated by subsequent changes, will be made
direct and outside escrow. The phrase "close of escrow" (COE or CE) as used in
this escrow means the date on which documents are recorded and relates only in
proration and/or adjustments unless otherwise specified. You are to use
information contained on last available tax statement, rental statement as
provided by the Seller, beneficiary's statement and fire insurance policies
delivered into escrow for the prorates provided for herein. Tax bills issued
after close of escrow shall be handled directly between buyer and seller.
3. SUPPLEMENTAL TAXES
The within described property will be subject to supplemental real
property taxes due to the change of ownership taking place through this escrow.
Any supplemental real property taxes arising as a result of the transfer of the
property to Buyer shall be the sole responsibility of Buyer and any
supplemental real property taxes arising prior to the closing date shall be the
sole responsibility of the Seller. TAX BILLS ISSUED AFTER CLOSE OF ESCROW SHALL
BE HANDLED DIRECTLY BETWEEN BUYER AND SELLER.
4. UTILITIES/POSSESSION
Transfer of utilities and possession of the premises are to be settled
by the parties direct and outside of escrow.
5. RECORDATION OF INSTRUMENTS
Recordation of any instruments delivered through this escrow, if
necessary or proper for the issuance of the policy of title insurance called
for, is authorized.
6. AUTHORIZATION TO FURNISH COPIES
You are authorized to furnish copies of these instructions,
supplements, amendments, or notices of cancellation and closing statements in
this escrow, to the Real Estate Broker(s) and Lender(s) named in this escrow.
7. AUTHORIZATION TO EXECUTE ASSIGNMENT OF HAZARD INSURANCE POLICIES
Either Buyer, Seller and/or Lender will hand you the insurance agent's
name and insurance policy information, and you are to execute, on behalf of the
principals hereto, form assignments of interest in any insurance policy (other
than title insurance) called for in this escrow, forward assignment and policy
to the insurance agent, requesting that insurer consent to such transfer and/or
attach a loss payable clause and/or such other endorsements as may be required,
and forward such policy(s) to the principals entitled thereto. It is not your
responsibility to verify the information handed you or the assignability of
said insurance. Your sole duty is to forward said request to insurance agent as
close of escrow.
Further, there shall be no responsibility upon the part of the escrow
company to renew hazard insurance upon expiration or otherwise keep it in force
either during the interim and/or subsequent to the close of escrow.
Cancellation of any existing hazard insurance policies are to be handled direct
and outside of escrow.
8. PERSONAL PROPERTY
No examination or insurance as to the amount or payment of personal
property taxes is required unless specifically requested.
By the signing below, the parties to the above referenced escrow
hereby acknowledge that they are indemnifying the Escrow Agent of any and all
matters regarding any "Bulk Sales" requirements, if applicable, and instruct
Escrow Agent to proceed with the closing of escrow without any matter of any
nature whatsoever regarding "Bulk Sales" being handled through escrow.
9. RIGHT OF RESIGNATION
Escrow Agent has the right to resign upon written ten (10) day notice.
If such right is exercised, all funds and documents shall be returned to the
party who deposited them and Escrow Agent shall have no liability hereunder.
10. RIGHT OF CANCELLATION
Any principal instructing you to cancel this escrow shall file notice
of cancellation in your office in writing. You shall, within two (2) working
days thereafter, mail, by certified mail, one copy of such notice to each of
the other principals at the addresses stated in this escrow. UNLESS WRITTEN
OBJECTION TO CANCELLATION IS FILED IN YOUR OFFICE BY A PRINCIPAL WITHIN TEN
(10) DAYS AFTER DATE OF SUCH MAILING, YOU ARE AUTHORIZED TO COMPLY WITH SUCH
NOTICE AND DEMAND PAYMENT OF YOUR CANCELLATION CHARGES. If written objection is
filed, you are authorized to hold all money and instruments in this escrow and
take no further action until otherwise directed, either by the principals'
mutual written instructions, or final order of a court of competent
jurisdiction.
11. ACTION IN INTERPLEADER
The principals hereto expressly agree that you, as escrow holder, have
the absolute right at your election to file an action in interpleader requiring
the principals to answer and litigate their several claims and rights among
themselves and you are authorized to deposit with the clerk of the court all
documents and funds held in this escrow. In the event such action is filed, the
principals jointly and severally agree to pay your cancellation charges and
costs, expenses and reasonable attorney's fees which you are required to expend
or incur in such interpleader action, the amount thereof to be fixed and
judgment therefor to be rendered by the court. Upon the filing of such action,
you shall thereupon be fully released and discharged from all obligations to
further perform any duties or obligations otherwise imposed by the terms of
this escrow.
______________________________________________________________________
Signature
______________________________________________________________________
12. TERMINATION OF AGENCY OBLIGATION
If there is no action taken on this escrow within six (6) months after
the "time limit date" as set forth in the escrow instructions or written
extension thereof, your agency obligation shall terminate at your option and
all documents, monies or other items held by you shall be returned to the
parties depositing same. In the event of cancellation of this escrow, whether
it be at the request of any of the principals or otherwise, the fees and
charges due FIDELITY NATIONAL TITLE, including expenditures incurred and/or
authorized shall be borne equally by the parties hereto (unless otherwise
agreed to specifically).
13. CONFLICTING INSTRUCTIONS
Upon receipt of any conflicting instructions, you are no longer
obligated to take any further action in connection with this escrow until
further consistent instructions are received from the principals to this
escrow.
14. REIMBURSEMENT ATTORNEY FEES/ESCROW HOLDER
In the event that a suit is brought by any party or parties to these
escrow instructions to which the escrow holder is named as a party which
results in a judgment in favor of the escrow holder and against a principal or
principals herein, the principal or principals' agent agree to pay said escrow
holder all costs, expenses and reasonable attorney's fees which it may expend
or incur in said suit, the amount thereof to be fixed and judgment therefore to
be rendered by the court in said suit.
15. DELIVERY/RECEIPT
Delivery to Buyer and/or Seller as used in these instructions is to be
by regular mail, and receipt is determined to be 72 hours after such mailing
unless otherwise stated herein. All documents, balances and statements due to
the undersigned are to be mailed to the address shown herein.
16. STATE/FEDERAL CODE NOTIFICATIONS
According to Section 1521 of The Tax Reform Act of 1986, the Seller,
when applicable, will be required to complete a sales activity report that will
be utilized to generate a 1099 to the Internal Revenue Service.
Pursuant to Section 480.3 of Revenue and Taxation Code of the State of
California prior to the close of escrow, Buyer will provide Escrow Holder with
a Preliminary Change of Ownership Report. In the event said report is not
handed to Escrow Holder for submission to the County in which subject property
is located, upon recording of the Grant Deed, Buyers acknowledge that the
applicable fee will be assessed by said County and Escrow Holder shall debit
the account of Buyer for same at close of escrow. Further, Buyers acknowledge
that this lack of submission may impact certain provisions under the Owners
Policy of Title Insurance issued at close of this escrow.
Pursuant to Foreign Investors in Real Property Tax Act, the Internal
Revenue Code, Sections 1445 and 6039 C, and any applicable state codes
affecting the same, Buyer and Seller herein represent and warrant that they
will seek and obtain independent legal advice and counsel relative to their
obligations and will take all steps in order to comply with such requirements
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and agree to hold you harmless relative to their compliance therewith. (SALE
ONLY)
17. ENCUMBRANCES
Escrow agent is to act upon any statements furnished by a lienholder
or his agent without liability or responsibility for the accuracy of such
statements. Any adjustment necessary because of a discrepancy between the
information furnished Escrow Agent and an amount later determined to be correct
shall be settled between the parties direct and outside of escrow.
You are authorized to pay all encumbrances necessary to place title in
condition called for herein, including but not limited to prepayment penalties,
without further approval of the undersigned.
18. ENVIRONMENTAL ISSUES
FIDELITY NATIONAL TITLE has made no investigation concerning said
property as to environmental/toxic waste issues. Any due diligence required or
needed to determine environmental impact as to forms of toxification, if
applicable, will be done direct and outside of escrow. FIDELITY NATIONAL TITLE
is released of any responsibility and/or liability in connection therewith.
19. USURY
You are not to be concerned with any questions of usury in any loan or
encumbrance involved in the processing of this escrow, and you are hereby
released of any responsibility or liability therefore.
20. DISCLOSURE
Your knowledge of matters affecting the property, provided such facts
do not prevent your compliance with these instructions, does not create any
liability or duty in addition to your responsibility under these instructions.
21. CLARIFICATION OF DUTIES
FIDELITY NATIONAL TITLE serves as an Escrow Agent ONLY in connection
with these instructions and cannot give legal advice to any party hereto.
THIS AGREEMENT IN ALL PARTS APPLIES TO, INSURES TO THE BENEFIT OF, AND BINDS
ALL PARTIES HERETO, THEIR HEIRS, LEGATEES, DEVISEES, ADMINISTRATORS, EXECUTORS,
SUCCESSORS AND ASSIGNS, AND WHENEVER THE CONTEXT SO REQUIRES THE MASCULINE
GENDER INCLUDES THE FEMININE AND NEUTER, AND THE SINGULAR NUMBER INCLUDES THE
PLURAL. THESE INSTRUCTIONS AND ANY OTHER AMENDMENTS MAY BE EXECUTED IN ANY
NUMBER OF COUNTERPARTS, EACH OF WHICH SHALL BE CONSIDERED AS AN ORIGINAL AND BE
EFFECTIVE AS SUCH.
MY SIGNATURE HERETO CONSTITUTES INSTRUCTION TO ESCROW HOLDER OF ALL TERMS AND
CONDITIONS CONTAINED IN THIS AND ALL PRECEDING PAGES AND FURTHER SIGNIFIES THAT
I HAVE READ AND UNDERSTAND THESE GENERAL PROVISIONS.
_______________________________________________________________________________
Signature
_______________________________________________________________________________
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EXHIBIT "D"
RECORDING REQUESTED BY
MAIL TAX STATEMENT TO
Carl Karcher Enterprises
1200 N. Harbor Blvd.
Anaheim, CA 92803
WHEN RECORDED MAIL TO
Carl Karcher Enterprises, Inc.
1200 N. Harbor Blvd.
Anaheim, CA 92803
Attn: Leasing/Escrow Dept.
________________________________ SPACE ABOVE RECORDER'S USE ONLY________________
ORDER NO.
ESCROW NO. GRANT DEED (INDIVIDUAL)
________________________________________________________________________________
The undersigned grantor(s) declare(s):
Documentary transfer tax is $____________________.
( ) Computed on full value of property conveyed, or
( ) Computed on full value less value of liens and encumbrances remaining
at time of sale.
( ) Unincorporated area ( ) City of ____________________________________
Tax Parcel No. ____________________________
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
CARL N. KARCHER, Trustee of CARL N. KARCHER AND MARGARET M. KARCHER TRUST,
hereby GRANT(S) to
CARL KARCHER ENTERPRISES, INC., a California corporation,
the following described real property in the
County of Orange, State of California:
Lots, 4, 5 and 6 in Block 1 in Tract No. 856, as per map thereof recorded in
Book 16, Page 8 of Miscellaneous Maps, Records of Orange County, California.
SUBJECT TO: Covenants, conditions, rights, easements and encumbrances of
record.
_____________________________________
Dated______________________________ _____________________________________
_____________________________________
_____________________________________
STATE OF CALIFORNIA S.S.
County of _________________________
On ___________________________________ before me,
___________________________________________, Notary Public,
personally appeared _______________________________________________,
personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal,
Signature ______________________________________________________ (Seal)