FORM 8-K/A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CURRENT REPORT
AMENDMENT NO. 1
TO FORM 8-K FILED JULY 25, 1996
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
July 10, 1996
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Date of Report
(Date of earliest event reported)
Metric Income Trust Series, Inc.
--------------------------------
(Exact name of registrant as
specified in its charter)
0-18294 94-3087630 California
- ------------- ------------- ---------------
(Registration (IRS Employer (State or Other
File Identification Jurisdiction of
Number) Number) Incorporation)
One California Street, San Francisco, California 94111-5415
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(415) 678-2000
(800) 347-6707 Wats line for all states
<PAGE>
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION
AND EXHIBITS
(a) Exhibit
Agreement for Purchase and Sale of Pearle Express Store located in
Orland Park, Illinois dated May 16, 1996.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, Registrant
has duly caused this Report to be signed on its behalf by the undersigned,
thereunto duly authorized.
METRIC INCOME TRUST SERIES, INC.,
a California Corporation
By: /s/ Margot M. Giusti
-----------------------
Margot M. Giusti
Chief Financial Officer
Date: October 10, 1996
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AGREEMENT FOR PURCHASE AND SALE
OF
REAL PROPERTY
By and Between
METRIC INCOME TRUST SERIES, INC.,
a California corporation,
as Seller,
and
T.L. SWINT INDUSTRIES,
an Illinois corporation,
as Buyer.
May 16, 1996
Property Located At:
24 Orland Square Drive,
Orland Park, Illinois
Known As:
Pearle Vision Store
<PAGE>
TABLE OF CONTENTS
ARTICLE
l BASIC DEFINITIONS 1
Section 1.1 Closing Date 1
Section 1.2 Contract Period 1
Section 1.3 Inspection Period 1
Section 1.4 Intangible Property 1
Section 1.5 Leases 1
Section 1.6 Personal Property 1
Section 1.7 Property 1
Section 1.8 Real Property 2
Section 1.9 Title Company 2
Section 1.10 Title Report 2
2 PURCHASE AND SALE 2
Section 2.1 Purchase and Sale 2
Section 2.2 Purchase Price 2
Section 2.3 Buyer's Review and Seller's
Disclaimer 2
Section 2.4 Environmental Report 5
3 CONDITIONS PRECEDENT 5
Section 3.1 Conditions 5
Section 3.2 Failure or Waiver of Conditions Precedent 6
4 COVENANTS, WARRANTIES AND REPRESENTATIONS 6
Section 4.1 Seller's Warranties and
Representations 6
Section 4.2 Seller's Covenants 7
Section 4.3 Buyer's Warranties and
Representations 8
Section 4.4 Limitations 8
(i)
<PAGE>
ARTICLE
5 ESCROW AND CLOSING 9
Section 5.1 Escrow Arrangements 9
Section 5.2 Title Company's Duties and Closing 10
Section 5.3 Closing Costs 11
Section 5.4 Prorations 11
Section 5.5 Closing Date 12
Section 5.6 Insurance 12
Section 5.7 Tenant Estoppels 12
Section 5.8 Delivery of Original Documents 13
Section 5.9 Filing of Reports 13
6 DEPOSIT 14
7 MISCELLANEOUS 14
Section 7.1 Damage or Destruction 14
Section 7.2 Brokerage Commissions and Finder's
Fees 15
Section 7.3 Leasing Commissions 15
Section 7.4 Successors and Assigns 15
Section 7.5 Notices 15
Section 7.6 Time 16
Section 7.7 Possession 16
Section 7.8 Incorporation by Reference 17
Section 7.9 No Deductions or Off-Sets 17
Section 7.10 Attorneys' Fees 17
Section 7.11 Construction 17
Section 7.12 No Merger 17
Section 7.13 Governing Law 17
Section 7.14 Disclosure of Information 17
Section 7:15 Damages 18
Section 7.16 Termination without Breach 18
Section 7.17 Counterparts 19
Section 7.18 Entire Agreement 19
Section 7.19 Tax-Free Exchange 19
(ii)
<PAGE>
EXHIBITS
Exhibit A - Legal Description
Exhibit B - List of Due Diligence Items
Exhibit C - Form of Inquiry Memorandum
Exhibit C-1 - Schedule of Exceptions
Exhibit D Form of Transfer Tax Declarations
Exhibit E - Form of Deed
Exhibit F - Form of General Assignment
Exhibit G - Form of Bill of Sale
Exhibit H - Form of Assignment of Lease
Exhibit I - Form of FIRPTA Certificate
Exhibit J - Form of Title Insurance Policy
Exhibit K - Form of Affidavit of Title
Exhibit L - Form of Illinois Notice of Sale or Purchase of
Business Assets
Exhibit M - Form of Letter to Tenant
Exhibit N - Form of Estoppel Certificate
(iii)
<PAGE>
AGREEMENT FOR PURCHASE AND SALE
OF
REAL PROPERTY
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY is made and
entered into as of May 16, 1996 by and between METRIC INCOME TRUST SERIES, INC.,
a California corporation ("Seller"), and T.L. SWINT INDUSTRIES, an Illinois
corporation ("Buyer").
ARTICLE 1
BASIC DEFINITIONS
Section 1.1 Closing Date. The term "Closing Date" shall mean the date
upon which the escrow described in Article 5 closes, which date shall be no
later than the date specified in Section 5.5 hereof.
Section 1.2 Contract Period. The term "Contract Period" shall mean the
period from the date of this Agreement through and including the Closing Date.
Section 1.3 Inspection Period. The term "Inspection Period" shall mean
the period following the date of this Agreement, ending at 5 p.m. on June 17,
1996.
Section 1.4 Intangible Property. The term "Intangible Property" shall
mean Seller's rights and interests in the following: (i) the Leases, (ii) any
service contracts pertaining to the Real Property, (iii) any governmental
licenses, permits and approvals held by Seller relating to the occupancy or use
of the Real Property, and (iv) any existing warranties held by Seller and given
by third parties with respect to the Real Property.
Section 1.5 Leases. The term "Leases" shall mean all leases and/or
rental agreements for occupancy of any portion of the Real Property.
Section 1.6 Personal Property. The term "Personal Property" shall mean
Seller's interest, if any, in all furniture, fixtures, machinery, appliances,
equipment and other personal property located on the Real Property and utilized
in connection with the ownership and operation of the Real Property by Seller,
but specifically excluding any and all personal computers, software, facsimile
machines and copy machines located on the Real Property or utilized in
connection therewith.
Section 1.7 Property. The term "Property" shall mean the Real Property,
as more particularly described in Exhibit A attached to this Agreement, the
Personal Property and the Intangible Property.
<PAGE>
Section 1.8 Real Property. The term "Real Property" shall mean that
certain real property (including, without limitation, any and all improvements)
with a mailing address of 24 Orland Square Drive, Orland Park, Illinois . The
land component of the Real Property is described with precision in the Title
Report.
Section 1.9 Title Company. The term "Title Company" shall mean Chicago
Title Insurance Company whose address for this transaction is as follows:
Chicago Title Insurance Company
388 Market Street, Suite 1300
San Francisco, California 94111
Attn: Mr. Kevin Thompson, Senior Escrow Officer
Escrow No. 18606
Fax No. (415) 956-2175
Phone No. (415) 788-0871
Section 1.10 Title Report. The term "Title Report" shall mean the
commitment for title insurance with respect to the Real Property to be issued by
Title Company.
ARTICLE 2
PURCHASE AND SALE
Section 2.1 Purchase and Sale. Seller agrees to sell the Property to
Buyer, and Buyer agrees to purchase the Property from Seller upon all of the
terms, covenants and conditions set forth in this Agreement.
Section 2.2 Purchase Price. The purchase price for the Property (the
"Purchase Price") shall be the sum of One Million Seventy Thousand and No/100
Dollars ($1,070,000.00) payable as follows:
(a) Payment of the Deposit; and
(b) The balance of the Purchase Price shall be paid in cash through the
escrow established pursuant to Section 5.1 on the Contract Date.
Section 2.3 Buyer's Review and Seller's Disclaimer.
(a) On or before the date of this Agreement, Seller has furnished to
Buyer copies of each of the documents described on Exhibit B hereto pertaining
to the Property. By placing its initials in the space provided below, Buyer
acknowledges its receipt of each of the documents to be delivered by Seller
described on Exhibit B.
Buyer's Initials: /s/ TLS
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No later than twenty (20) days after the date of this Agreement, Seller
shall deliver to Buyer the Title Report together with copies of all exceptions
referred to therein, an updated survey made in accordance with the "Minimum
Standard Detail Requirements for Land Title Surveys" jointly established and
adopted by ALTA and ACSM in 1992 and certified to Purchaser, Seller and the
Title Company, and copies of all contracts, leases, permits and licenses
affecting the Property in Seller's possession. Buyer shall have until the end of
the Inspection Period to approve in writing all of such documents. Any such
documents not expressly disapproved by Buyer in writing before the end of the
Inspection Period shall be deemed approved.
Any exceptions to the Title Report, the survey or other documents and
information pertaining to exceptions to title not expressly disapproved by Buyer
in writing on or before the end of the Inspection Period shall be deemed
approved and shall be referred to as the "Exceptions." Within five (5) days
after any notice from Title Company identifying the need to amend or add any
exception to the Title Report, Buyer shall notify Seller of any objections Buyer
may have to said amendment or addition, failure to disapprove such amendment or
addition shall be deemed to be approval. Seller shall use reasonable efforts to
remove prior to the Closing Date as matters affecting title any disapproved
exceptions other than items 2, 3, 4, 5, 6, 7, 8, 9 and 11of Schedule B of
Chicago Title Insurance Company's Policy No. 72-27-319 issued in favor of
Seller, and any claim by Forsythia Realty Corp. or Vista Bella Realty Corp. or
their respective successors and assigns, in respect of which Chicago Title
Insurance Company has affirmatively insured Seller and has agreed to insure any
buyer of the Real Property from Seller (all of the foregoing of which shall
constitute "Exceptions"), but Seller shall not be required to institute any
litigation or incur any cost in excess of $10,000 to do so. If, prior to the
Closing Date, Seller notifies Buyer that Seller will not or will not be able to
remove any of the disapproved exceptions, then, within five (5) days after the
giving of such notice by Seller, or prior to the Closing Date, whichever is
earlier, Buyer shall give Seller and Title Company written notice, either that
Buyer (i) waives its prior disapproval of the disapproved exceptions and accepts
such title as Seller is willing to convey, or (ii) terminates this Agreement.
(b) Prior to expiration of the Inspection Period, Buyer shall have the
right, at its sole cost and expense, to conduct whatever inspections, studies,
tests and investigations Buyer desires to conduct relating to the Property
including, without limitation, the physical, environmental, economic and legal
condition of the Property (the "Inspections"). Buyer shall indemnify and defend
Seller against and hold Seller harmless from any and all loss, cost, claim,
liability and expense (including reasonable attorneys fees) arising out of
Buyer's activities on the Real Property during the Inspection Period. Prior to
expiration of the Inspection Period, Buyer shall complete the Inspections and
notify Seller in writing of its approval or disapproval of the Property. Failure
to timely disapprove the Property in writing shall be deemed to be approval by
Buyer and constitute Buyer's waiver of the condition set forth in Section 3.1
(a) (i) below.
(c) Buyer hereby agrees that the waiver or satisfaction of the
condition set forth in Section 3.1(a) (i) below shall constitute an
acknowledgment that Buyer (a) has concluded whatever studies, tests, and
investigations Buyer desired to conduct relating to the Property
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including, without limitation, economic reviews and analyses, soils tests,
engineering analyses, environmental analyses and analysis of any applicable
records of the planning, building, public works or any other governmental or
quasi-governmental entity having or asserting jurisdiction over the Property;
(b) has reviewed and read (or has elected not to do so) and has understood all
instruments affecting the Property and/or its value which Buyer deems relevant,
including, without limiting the generality of the foregoing, all documents
referred to in the Title Report and all leases, operating statements,
demographic studies and market analyses; (c) and its consultants have made all
such independent studies, analyses and investigations, as Buyer has deemed
necessary, including, without limitation, those relating to environmental
matters and the leasing, occupancy and income of the Property; (d) is relying
solely on its own investigations as to the Property and its value and is
assuming the risk that adverse physical, economic or other conditions
(including, without limitation, adverse environmental conditions (including,
without limitation, soils and groundwater conditions) and status of compliance
with the requirements of the Americans With Disabilities Act of 1990 or the Fair
Housing Act of 1968, as amended) may not have been revealed by such
investigation; and (e) that Seller has given Buyer every opportunity to
consider, inspect and review to its satisfaction the physical, environmental,
economic and legal condition of the Property and all files and information in
Seller's possession which Buyer deems material to the purchase of the property.
(d) Except as otherwise expressly provided in Section 4.1 below, Seller
disclaims the making of any representations or warranties, express or implied,
regarding the Property or its value or matters affecting the Property,
including, without limitation, the physical condition of the Property, title to
or the boundaries of the Real Property, pest control matters, soil condition,
hazardous waste, toxic substance or other environmental matters, compliance with
the Americans With Disabilities Act of 1990, Fair Housing Act of 1968 (as
amended) or other building, health, safety, land use and zoning laws,
regulations and orders, structural and other engineering characteristics,
traffic patterns and all other information pertaining to the Property. Buyer,
moreover, acknowledges (i) that Seller did not develop or construct the Real
Property, (ii) that Buyer has entered into this Agreement with the intention of
making and relying upon its own investigation of the physical, environmental,
economic and legal condition of the Property and (iii) that Buyer is not relying
upon any representations and warranties, other than those specifically set forth
in Section 4.1 below, made by Seller or anyone acting or claiming to act on
Seller's behalf concerning the Property or its value. Buyer further acknowledges
that it has not received from Seller any accounting, tax, legal, architectural,
engineering, property management or other advice with respect to this
transaction and is relying solely upon the advice of its own accounting, tax,
legal, architectural, engineering, property management and other advisors. Buyer
agrees that the Property is to be sold to and accepted by Buyer in its "AS IS"
condition and WITH ALL FAULTS on the Closing Date and assumes the risk that
adverse physical, environmental, economic or legal conditions may not have been
revealed by its investigation.
(e) Except with respect to any claims arising out of any breach of
covenants, representations or warranties set forth in Sections 4.1 or 4.2 below,
and except for any liability imposed upon Seller by any applicable federal,
state or local environmental law, Buyer, for itself and its agents, affiliates,
successors and assigns, hereby releases and forever discharges Seller, its
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agents, partners, affiliates, successors and assigns from any and all rights,
claims and demands at law or in equity, whether known or unknown at the time of
this Agreement, which Buyer has or may have in the future, arising out of the
physical, environmental, economic or legal condition of the Property. Buyer
hereby specifically acknowledges that Buyer has carefully reviewed this
subsection and discussed its import with legal counsel and that the provisions
of this subsection are a material part of this Agreement.
Buyer's Initials: /s/ TLS
---------
Section 2.4 Environmental Report. As part of its inspection of the
Property, Buyer shall have the right to obtain whatever environmental reports
Buyer desires with respect to the Real Property, the expense of which shall be
paid by Buyer. Buyer shall have until the end of the Inspection period to
approve or disapprove any such environmental reports; and if Buyer disapproves
any such environmental report, this Agreement shall be terminated by Buyer
before the end of the Inspection Period in accordance with Section 3.2 hereof.
Buyer agrees to send to Seller a copy of any environmental report obtained by
Buyer in respect of the Property promptly after Buyer's receipt of same.
ARTICLE 3
CONDITIONS PRECEDENT
Section 3.1 Conditions.
(a) Notwithstanding anything in this Agreement to the contrary, Buyer's
obligation to purchase the Property shall be subject to and contingent upon the
satisfaction or waiver by Buyer of the following conditions precedent:
(i) Buyer's inspection and approval, within the Inspection Period, of
all physical, environmental, economic and legal matters relating to the
Property, pursuant to Sections 2.3 and 2.4 above.
(ii) The willingness of Title Company or some other reputable title
insurer acceptable to Buyer to issue its standard (American Land Title
Association) owner's form policy of title insurance ("Buyer's Title Policy"),
insuring Buyer in the amount of the Purchase Price that title to the Real
Property is vested of record in Buyer on the Closing Date, subject only to the
printed conditions and exceptions of such policy and the Exceptions. Buyer's
title policy shall contain extended coverage over the general exceptions, an
ALTA 3.1 zoning endorsement, a survey endorsement, a creditor's rights
endorsement and such other endorsements as determined by Buyer to be reasonably
necessary which such determination shall be made by Buyer prior to expiration of
the Inspection Period. Buyer agrees that the waiver or satisfaction of the
condition set forth in Section 3.1 (a) (i) above shall constitute an
acknowledgement that Buyer has determined that it can obtain the Buyer's title
policy with all endorsements deemed necessary by Buyer.
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(b) Notwithstanding anything in this Agreement to the contrary,
Seller's obligation to sell the Property shall be subject to and contingent upon
the satisfaction or waiver by Seller of the following conditions precedent:
(i) The willingness of Title Company to issue the Buyer's Title Policy.
(ii) Buyer's timely satisfaction or waiver of the condition set forth
in Section 3.1(a) (i) above.
Section 3.2 Failure or Waiver of Conditions Precedent. In the event any
of the conditions set forth in Section 3.1 are not fulfilled or waived by the
party intended to be benefited thereby, this Agreement shall terminate. Either
party may, at its election, at any time or times on or before the date specified
for the satisfaction of the condition, waive in writing the benefit of any of
the conditions set forth in Section 3.1(a) and 3.1(b) above. Buyer's failure to
notify Seller in writing of the failure of any of the conditions set forth in
Section 3.1(a) on or before the end of the Inspection Period shall constitute a
waiver of such condition. In any event, Buyer's consent to the close of escrow
pursuant to this Agreement shall waive any remaining unfulfilled conditions.
ARTICLE 4
COVENANTS, WARRANTIES AND REPRESENTATIONS
Section 4.1 Seller's Warranties and Representations. Seller hereby
represents and warrants to Buyer as follows:
(a) This Agreement has been approved by Seller's Board of Directors.
Seller has full power and lawful authority to enter into and carry out the terms
and provisions of this Agreement and to execute and deliver all documents which
are contemplated by this Agreement and all actions of Seller and its Board of
Directors necessary to confer such power and authority upon the persons
executing this Agreement and all documents which are contemplated by this
Agreement on behalf of Seller have been taken; and
(b) Minton J. Newell (the "Agent") the Senior Vice President and
Director of Property Sales of Metric Management, Inc., an affiliate of Metric
Realty, the Seller's advisor, based solely upon inquiry, by means of the Inquiry
Memorandum attached to this Agreement as Exhibit C (the "Inquiry Memorandum"),
of the individuals listed thereon, each of whom responded to such Inquiry
Memorandum, and without any independent investigation or further inquiry, has no
actual knowledge, as of the date hereof, except as specifically set forth in
Exhibit C-l attached hereto and incorporated herein by reference, that:
(i) Seller has received any written notice from any governmental
authorities that eminent domain proceedings for the condemnation of the Real
Property are pending or are under consideration;
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(ii) Seller has received any written notice of any threatened or
pending litigation against Seller which would materially and adversely affect
the Property;
(iii) Seller has received any written notice from any governmental
authority that the improvements located on the Real Property are presently in
violation of any applicable building codes;
(iv) Seller has received any written notice from any governmental
authority that Seller's use of the Real Property or any improvement on the Real
Property is presently in violation of any applicable zoning, land use or other
law, order, ordinance, rule or regulation affecting the Real Property; or
(v) except for matters, if any, disclosed in the environmental reports,
if any, delivered to Buyer by Seller or which may be disclosed in any
environmental reports obtained by Buyer, (a) there has occurred, any release of
Hazardous Substances (as hereinafter defined) located on or beneath the Real
Property; (b) Seller has been required by any governmental agency to undertake
any remediation activity with respect to Hazardous Substances on the Real
Property, (c) the Real Property is comprised of any building, equipment,
structure or other stationary item containing a chemical subject to reporting
under Section 312 of the Federal Emergency Planning and Community Right-To-Know
Act of 1986, as amended, 42 U.S.C. Section 6901 et seq., and Federal regulations
promulgated thereunder; and (d) the Real Property described herein does contain
an underground storage tank which requires notification under Section 9002 of
the Solid Waste Disposal Act, as amended, 42 U.S.C. Section 6901 et seq., and
Federal regulations promulgated thereunder. As used herein the term "Hazardous
Substances" shall mean and include any and all toxic or hazardous substances,
materials or wastes listed in the United States Department of Transportation
Table (49 CFR 172.101) or by the Environmental Protection Agency as hazardous
substances (40 CFR Part 302) and in any and all amendments thereto in effect as
of the Closing Date, or such substances, materials or wastes otherwise regulated
under any applicable local, state or federal law including, without limitation,
petroleum products.)
(c) Seller has delivered to Buyer a true, correct and complete copy of
the only Lease for occupancy of any portion of the Real Property and all
amendments thereto; and there are no currently uncured defaults by the tenant
under the Lease.
(d) There are no employees of the Property or Seller who will become
employees of Purchaser after the Closing Date or for which Purchaser shall be
responsible in any way.
Section 4.2 Seller's Covenants. Seller hereby covenants and agrees
that:
(a) During the Contract Period, Seller will not enter into any service
contracts binding upon Buyer other than in the ordinary course of business and
on terms consistent with then current market conditions without Buyer's prior
approval, which approval shall not be
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unreasonably withheld and shall be deemed given if Buyer should fail to approve
or disapprove any proposed contract in writing within five (5) working days
following Seller's request for such action.
(b) During the Contract Period, Seller will not enter into any leases
for any portion of the Real Property or modification of the existing lease
without Buyer's prior approval, which approval shall not be unreasonably
withheld and shall be deemed given if Buyer should fail to approve or disapprove
any proposed lease in writing within five (5) working days following Seller's
request for such action. The cost to landlord of any leasing commissions payable
in connection with the lease of any portion of the Real Property which becomes
effective at any time during the Contract Period shall be prorated between Buyer
and Seller, based on the initial term of the lease, as of the Closing Date.
Buyer shall be responsible for all such costs for any leases commencing after
the Closing Date.
Section 4.3 Buyer's Warranties and Representations. Buyer hereby
represents and warrants to Seller that (a) Buyer and any entity to which Buyer
may assign this Agreement pursuant to Section 7.4 below have, and as of the
Closing Date shall have, full power and lawful authority to enter into and carry
out the terms and conditions of this Agreement and to execute and deliver all
documents which are contemplated by this Agreement, and (b) all actions
necessary to confer such power and authority upon the persons executing this
Agreement and all documents which are contemplated by this Agreement to be
executed on behalf of Buyer or its assignee have been taken.
Section 4.4 Limitations. The parties agree that (a) Seller's warranties
and representations contained in this Agreement and in any document (including
any certificate) executed by Seller pursuant to this Agreement shall survive
Buyer's purchase of the Property only for a period of six (6) months after the
Closing Date (the "Limitation Period"), and (b) Buyer shall provide actual
written notice to Seller of any breach of such warranties or representations and
shall allow Seller thirty (30) days within which to cure such breach, or, if
such breach cannot reasonably be cured within thirty (30) days, an additional
reasonable time period, so long as such cure has been commenced within such
thirty (30) days and diligently pursued. If Seller fails to cure such breach
after actual written notice and within such cure period, Buyer's sole remedy
shall be an action at law for damages as a consequence thereof, which must be
commenced, if at all, within the Limitation Period; provided, however, that if
within the Limitation Period Buyer gives Seller written notice of such a breach
and Seller commences to cure and thereafter terminates such cure effort, Buyer
shall have an additional thirty (30) days from the date of such termination
within which to commence an action at law for damages as a consequence of
Seller's failure to cure. The Limitation Period referred to herein shall apply
to known as well as unknown breaches of such warranties or representations.
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ARTICLE 5
ESCROW AND CLOSING
Section 5.1 Escrow Arrangements. An escrow for the purchase and sale
contemplated by this Agreement has been opened by Seller with Title Company
under its escrow number 18606. On or before the Closing Date, Seller and Buyer
shall deliver joint escrow instructions to the Title Company consistent with
this Article 5 and the parties shall deposit in escrow the funds and documents
described below.
(a) Buyer shall deposit or cause to be deposited:
(i) the balance of the cash portion of the Purchase Price ("Seller's
Funds"), plus sufficient cash to pay Buyer's share of all escrow costs,
prorations and closing expenses as set forth in Sections 5.3 and 5.4 below;
(ii) a counterpart Assignment of Leases (as defined in subparagraph (b)
(iv) below), duly executed by Buyer;
(iii) a counterpart General Assignment (as defined in subparagraph (b)
(ii) below), duly executed by Buyer;
(iv) a counterpart Closing Statement setting forth all prorations and
disbursements in respect to this transaction (the "Closing Statement"); and
(v) counterparts of state and county Transfer Tax Declarations in the
form attached hereto as Exhibit D.
(b) Seller shall deposit:
(i) a duly executed and acknowledged deed to the Real Property in the
form attached to this Agreement as Exhibit E (the "Deed");
(ii) a duly executed assignment of Seller's interest in the Intangible
Property in the form attached to this Agreement as Exhibit F (the "General
Assignment");
(iii) a duly executed bill of sale in the form attached to this
Agreement as Exhibit G (the "Bill of Sale");
(iv) a counterpart Assignment by Seller and assumption by Buyer of
Seller's interest in the Leases affecting the Property as of the Closing Date in
the form attached hereto as Exhibit H (the "Assignment of Leases"), duly
executed by Seller;
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(v) a certificate from Seller certifying the information required by
1445 of the Internal Revenue Code and the regulations issued thereunder to
establish, for the purposes of avoiding Buyer's tax withholding obligations,
that Seller is not a "foreign person" as defined in Internal Revenue Code
1445(f) (3) in the form attached to this Agreement as Exhibit I (the "FIRPTA
Certificate");
(vi) the duly executed estoppel certificate(s) required pursuant to
Section 5.7 below;
(vii) a certificate from Seller based upon an updated Inquiry
Memorandum and an updated response thereto as set forth in Exhibit C-1 attached
hereto, as to the status of the Seller's warranties and representations set
forth in Section 4.1 (b) hereof as of a time no earlier than three (3) days
prior to the Closing Date; and if this certificate discloses any new items as to
the matters set forth in Section 4.1 (b) hereof which are adverse to Buyer's
interests in regard to its contemplated purchase of the Property, Buyer shall
have the option, to be exercised by written notice delivered by Buyer to Seller
on or before the Closing Date, to terminate this Agreement and receive a full
refund of all monies deposited by Buyer hereunder, or to waive such matters and
proceed with the closing of the transaction contemplated herein without
reduction of the Purchase Price, and in the event Buyer fails to so terminate
this Agreement on or before the Closing Date, Buyer shall be deemed to have
elected to close and consummate the transaction contemplated herein;
(viii) an ALTA statement in the form attached to this Agreement as
Exhibit J;
(ix) an Affidavit of Title in the form attached to this Agreement as
Exhibit K;
(x) an Illinois Bulk Sales Release/Stop Order in the form attached to
this Agreement as Exhibit L;
(xi) a letter to the tenant under the Lease in the form attached to
this Agreement as Exhibit M;
(xii) a counterpart Closing Statement; and
(xiii) counterparts of state and county Transfer Tax Declarations.
Section 5.2 Title Company's Duties and Closing. Seller and Buyer shall
instruct Title Company to close escrow on the Closing Date by:
(a) Recording all documents as may be necessary to clear title in
accordance with
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the requirements of this Agreement;
(b) Recording the Deed;
(c) Paying all closing costs and making all prorations in
accordance with Sections 5.3 and 5.4 of this Agreement and a closing
statement of adjustments and prorations prepared by Title Company and
approved by Buyer and Seller prior to the Closing Date (the "Closing
Statement");
(d) Delivering to Buyer the Title Policy; Title Company's
certified Closing statement; a conformed copy of the Deed showing
available recordation information, an original of each of the
Assumption Agreement, the Bill of Sale, the Assignment of Leases, the
General Assignment and the FIRPTA Certificate and copies of all other
documents deposited into Escrow; and
(e) Delivering to Seller the Purchase Price, plus or minus
closing adjustments and prorations, Title Company's certified Closing
Statement, a conformed copy of the Deed, an original of each of the
Assumption Agreement, the Bill of Sale, the Assignment of Leases, the
General Assignment and the Closing Certificate and copies of all other
documents delivered to Title Company.
Anything contained in this Agreement to the contrary notwithstanding,
because the Deed must be recorded in the records of Cook County, Illinois, and
because the escrow closing will occur at the Title Company's office in San
Francisco, California, Seller and Buyer will instruct the Title Company to
forward in advance of the Closing Date the Deed to the Title Company's office in
Chicago, Illinois so that the San Francisco and Chicago offices of the Title
Company can coordinate the closing. In this regard, as it will not be possible
for the Title Company to deliver to Buyer the Title Policy on the Closing Date,
the condition precedent set forth in Section 3.1 (a) (ii) will be satisfied by
the Title Company's delivering to the Buyer on the Closing Date the Title Report
marked by the Title Company on the Closing Date so as to irrevocably commit the
Title Company to issue to Buyer Buyer's Title Policy after the Deed has been
recorded subject only to the conditions and exceptions specified in Section 3.1
(a) (ii).
Section 5.3 Closing Costs. Seller and Buyer shall each pay one-half of
the escrow fee charged by Title Company. Seller shall pay for (i) the cost of
the updated survey, (ii) the cost for Buyer's Title Policy, and any endorsements
thereto desired by Buyer up to a total cost of $1,510.00, and Buyer shall pay
any cost in excess thereof, (iii) the cost for the state, county and any other
transfer tax not to exceed $1,605.00 and Buyer shall pay the cost of any
transfer taxes in excess thereof. Buyer shall pay all recording fees and the
cost of any environmental reports, engineering reports and the like obtained by
Buyer. Each party shall pay its own attorneys' fees.
Section 5.4 Prorations.
(a) Real property taxes and assessments, personal property taxes (if
any), rent
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(whether prepaid or applicable to the current rental period) and all other items
of income and expense with respect to the Property, subject to the expenses paid
directly or reimbursed by any tenant, shall be prorated between Seller and Buyer
as of the Closing Date. Items of income and expense for the Closing Date shall
be attributable to Seller. Buyer shall be responsible for all leasing
commissions and the cost to landlord of tenant improvements attributable to
periods after the Closing Date for all leases executed during the Contract
Period as set forth in Section 4.2(b). Buyer shall receive a credit in escrow in
the amount of any deposits under Leases in effect on the Closing Date, or any
portion thereof, which are in Seller's possession and refundable to the tenant
as of the Closing Date plus the amount of any prepaid rent for periods from and
after the Closing Date. Buyer shall not be entitled to any interest on such
deposits which may have accrued prior to the Closing Date unless such interest,
under the terms of the applicable Lease, accrues for the benefit of the tenant.
Seller shall receive a credit in escrow for any refundable deposits and/or bonds
held by any utility, governmental agency or service contractor with respect to
the Property. Any rent collected by Buyer after the Closing Date shall be
applied first to pay any rent then due and owing for any period after the
Closing Date, and then to pay any rent owing for any period before and including
the Closing Date which amount will be remitted by Buyer to Seller immediately
upon receipt. If either Buyer or Seller receives any revenues attributable to
the period during which it is not the owner of the Property, said party shall
promptly forward such amounts to the other party (if such revenues are only
partially attributable to the period during which said party is not the owner of
the Property, the amount paid to the other party shall be based upon proration
as of the Closing Date as set forth above). Buyer shall use its reasonable
efforts to collect and assist Seller in collecting any revenue which is owed to
Seller as of the Closing Date or which comes due thereafter, but Buyer shall not
be required to institute any litigation in respect thereof.
(b) Buyer and Seller shall cooperate to produce on or before the
Closing Date a schedule of prorations which is as complete and accurate as
reasonably possible. All prorations which can be liquidated accurately or
reasonably estimated as of the Closing Date shall be made in escrow on the
Closing Date. All other prorations and any adjustments to initial estimated
prorations, shall be made by Buyer and Seller within thirty (30) days following
the Closing Date or such later time as may be required, in the exercise of due
diligence, to obtain the necessary information for proration. Any net credit due
one party from the other as a result of such post-closing prorations and
adjustments shall be paid to the other in cash immediately upon the parties'
written agreement to a final schedule of post-closing adjustments and
prorations.
Section 5.5 Closing Date. The Closing Date shall occur on a date
mutually agreed upon by Buyer and Seller, which shall be not later than July 16,
1996; provided, however, the Closing Date shall occur on any earlier date
specified by Buyer by notice given to Seller at least ten (10) business days
prior to the earlier Closing Date specified by Buyer.
Section 5.6 Insurance. Seller's existing liability and property
insurance pertaining to the Property shall be cancelled as of the Closing Date,
and Seller shall receive any premium refund due thereon. Seller and Buyer will
cooperate to insure that the tenant under the Lease is not double billed for
reimbursement of liability and property insurance, and in this regard Seller
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will bill the tenant for such insurance only through the Closing Date, and Buyer
will bill the tenant for such insurance commencing on the day after the Closing
Date.
Section 5.7 Tenant Estoppels. Seller shall use its best efforts to
obtain and to deliver to Buyer on or before the Closing Date an estoppel
certificate substantially in the form attached hereto as Exhibit N from Eyelab,
Inc., the only tenant of the Property. In the event Seller is unable to obtain
this certificate prior to the Closing Date, Buyer shall have as its only rights
or remedies the right either to (i) waive the delivery of the estoppel
certificate and close the transaction contemplated herein in accordance with the
other terms and provisions of this Agreement, or (ii) notify Seller and the
Title Company that Buyer has elected to terminate this Agreement, in which event
all funds and documents deposited by each party shall be returned to the party
that has deposited same, and thereafter this Agreement shall terminate and be
null and void and of no further force or effect.
Section 5.8 Delivery of Original Documents. Seller agrees to deliver to
Buyer on or immediately following the Closing Date all original Leases, service
contracts, plans and specifications, plot plans, surveys, soils reports and
other original documents in Seller's possession pertaining to the Property which
have not previously been delivered to Buyer.
Section 5.9 Filing of Reports. Title Company shall be solely
responsible for the timely filing of any reports or returns required pursuant to
the provisions of Section 6045(e) of the Internal Revenue Code of 1986 (and any
similar reports or returns required under any state or local laws) in connection
with the closing of the transaction contemplated in this Agreement.
ARTICLE 6
DEPOSIT
Upon execution of this Agreement, Buyer is depositing in the escrow
established with Title Company for this transaction cash in the amount of
$50,000.00. Title Company shall invest all funds so deposited in an
interest-bearing cash-management account reasonably acceptable to Buyer and
Seller. The funds so deposited and all interest thereon are referred to
collectively as the "Deposit." In the event that (a) the conditions precedent
set forth in Section 3.1 above shall have been satisfied or waived, (b) Seller
shall have performed fully or tendered performance of its obligations hereunder
and (c) Buyer shall be unable or fail to perform its obligations hereunder, then
the entire amount of the Deposit shall be paid to and retained by Seller. Buyer
hereby certifies to the Title Company that Buyer's FEIN number is 36-3370462.
BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT SELLER'S
DAMAGES IN THE EVENT OF SUCH A BREACH OF THIS AGREEMENT BY BUYER WOULD
BE DIFFICULT OR IMPOSSIBLE TO ESTIMATE OR DETERMINE, THAT THE AMOUNT OF
THE DEPOSIT IS THE PARTIES' BEST AND MOST ACCURATE ESTIMATE OF THE
DAMAGES SELLER WOULD SUFFER IN THE EVENT THE TRANSACTION PROVIDED FOR
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<PAGE>
IN THIS AGREEMENT FAILS TO CLOSE, AND THAT SUCH ESTIMATE IS REASONABLE
UNDER THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT. BUYER
AND SELLER AGREE THAT SELLER'S RIGHT TO RETAIN THE DEPOSIT SHALL BE THE
SOLE AND EXCLUSIVE REMEDY OF SELLER IN THE EVENT OF A BREACH OF THIS
AGREEMENT BY BUYER.
ACCEPTED AND AGREED TO:
/s/ RAF /s/ TLS
- ------------- ------------
Seller Buyer
In the event that this transaction is consummated as contemplated by this
Agreement, then the entire amount of the Deposit shall be credited against the
Purchase Price. The entire amount of the Deposit shall be returned immediately
to Buyer in the event that (a) the conditions precedent set forth in Section 3.1
above shall have been satisfied or waived, (b) Buyer shall have performed fully
or tendered performance of its obligations hereunder and (c) Seller shall be
unable or fail to perform its obligations under this Agreement.
ARTICLE 7
MISCELLANEOUS
Section 7.1 Damage or Destruction.
(a) Subject to the provisions of subsection (b) below, Buyer shall be
bound to purchase the Property for the Purchase Price as required by the terms
of this Agreement without regard to the occurrence during the Contract Period of
any damage to or destruction of the Improvements ("Contract Period Damage").
Buyer shall receive a credit in escrow in the amount of any deductible under
Seller's insurance policies and any insurance proceeds (net of reasonable costs
incurred in securing such proceeds) collected by Seller prior to the Closing
Date as a result of any Contract Period Damage and not expended by Seller on
repair, replacement or restoration of the Property pursuant to subsection (c)
below. Seller promptly shall deliver to Buyer any such insurance proceeds as
shall be collected by Seller following the Closing Date.
(b) Notwithstanding the foregoing, if the cost of repair, replacement
or restoration of the Property attributable to any Contract Period Damage
exceeds $100,000.00, either party may elect to terminate this Agreement by
written notice to the other given not more than ten (10) days following the
event of damage or destruction and not later than one day prior to the Closing
Date. If the Contract Period Damage arises out of an uninsured risk, Seller
shall elect, by written notice given within such 10-day period, either to
terminate this Agreement or to close escrow as contemplated in this Agreement
with a reduction in the Purchase Price equal to the cost of repair, replacement
or restoration of the Property. Upon termination of this Agreement pursuant to
this paragraph, Seller shall return to Buyer the Deposit. In the event neither
party timely elects to terminate this Agreement pursuant to this subsection, the
provisions of subsection (a) above shall
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<PAGE>
be applicable.
(c) Upon the occurrence of any Contract Period Damage, Seller may, but
shall not be obligated to, use any insurance proceeds collected with respect to
such Contract Period Damage to repair, replace or restore the Property to the
extent reasonably feasible prior to the Closing Date. Seller's election to
commence the repair, replacement or restoration of the Property prior to the
Closing Date shall in no way imply that Seller has made any representation or
warranty with respect to any work performed in connection with such repair,
replacement or restoration ("Seller's Repairs"). The plans, materials, choice of
contractor and all other material aspects of the performance of Seller's Repairs
shall be subject to Buyer's review and approval (which shall not be unreasonably
withheld) and to the general disclaimer set forth in Section 2.3 above. In the
event that Buyer does not approve any aspect of Seller's Repairs in writing
within five (5) days following Seller's request for such approval, Seller may,
at its option, terminate this Agreement by written notice delivered to Buyer on
or before the Closing Date.
(d) Notwithstanding anything in this Agreement to the contrary, the
insurance proceeds to be credited or delivered to Buyer pursuant to this Section
7.1 shall exclude business interruption or rental loss insurance proceeds, if
any, allocable to the period through the Closing Date, which proceeds shall be
retained by Seller.
Section 7.2 Brokerage Commissions and Finder's Fees. Each party to this
Agreement warrants to the other that, except for the commissions mentioned
below, no person or entity can properly claim a right to a real estate
commission, real estate finder's fee, real estate acquisition fee or other real
estate brokerage type compensation (collectively, "Real Estate Compensation")
based upon the acts of that party with respect to the transaction contemplated
by this Agreement. Each party hereby agrees to indemnify and defend the other
against and to hold the other harmless from any and all loss, cost, liability or
expense (including but not limited to attorneys' fees and returned commissions)
resulting from any claim for Real Estate Compensation by any person or entity
based upon the indemnifying party's acts. Buyer acknowledges that Seller will
pay Real Estate Compensation to Epic/Savage Realty Partners and Cushman &
Wakefield per a written agreement among Seller, Epic/Savage Realty Partners and
Cushman & Wakefield; and Buyer acknowledges that Seller may pay Real Estate
Compensation to Metric Realty or its affiliates, but Buyer shall have no
obligation or liability with respect thereto.
Section 7.3 Leasing Commissions. Seller shall indemnify, protect,
defend and hold Buyer harmless from and against any leasing commissions payable
in connection with the current terms of the Leases (specifically excluding
therefrom any commission for option periods, renewal periods, extension periods
or waivers of termination rights or as otherwise provided in Section 4.2(b)
above). Buyer shall indemnify and hold Seller harmless from and against any
other leasing commissions relating to the Property.
Section 7.4 Successors and Assigns. Buyer may assign Buyer's rights
hereunder, and this Agreement shall inure to the benefit of and be binding upon
the parties hereto and their successors and assigns.
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<PAGE>
Section 7.5 Notices. All written notices required to be given pursuant
to the terms hereof shall be either (i) personally delivered, (ii) deposited in
the United States mail, registered or certified return receipt requested,
postage prepaid, (iii) sent by Federal Express or similar nationally recognized
overnight courier service, or (iv) transmittal by facsimile with a hard copy
sent within one (1) business day by any of the foregoing means, and addressed as
follows:
To Seller: c/o Metric Management, Inc.
1 California Street
Suite 1400
San Francisco, CA 94111-5415
Phone No. (415) 678-2135
Fax No. (415) 678-2291
Attn: Mr. Minton J. Newell
with a copy to: Sanford H. Zatcoff, Esq.
Holt, Ney, Zatcoff & Wasserman
100 Galleria Parkway
Suite 600
Atlanta, Georgia 30339
Phone No. (770) 956-9600
Fax No. (770) 956-1490
To Buyer: T.L. Swint Industries
7103 Sands Road
Crystal Lake, Illinois 60014
Phone No. (815) 356-1090
Fax No. (815) 356-1092
with a copy to: Lawrence J. Moss, Esq.
D'Ancona & Pflaum
30 N. LaSalle
Suite 2900
Chicago, Illinois 60602
Phone No. (312) 580-2000
Fax No. (312) 580-0923
The foregoing addresses may be changed from time to time by written
notice. Notices shall be deemed received upon the earlier of actual receipt or
delivery (or refusal to accept delivery) or three (3) working days following
sending as provided above.
Section 7.6 Time. Time is of the essence of every provision contained
in this Agreement.
Section 7.7 Possession. Possession of the Property shall be delivered
to Buyer on the
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<PAGE>
Closing Date, subject to then existing tenancies.
Section 7.8 Incorporation by Reference. All of the exhibits attached to
this Agreement or referred to herein and all documents in the nature of such
exhibits, when executed, are by this reference incorporated in and made a part
of this Agreement.
Section 7.9 No Deductions or Off-Sets. Buyer acknowledges that the
Purchase Price to be paid for the Property pursuant to this Agreement is a net
amount and shall not be subject to any off-sets or deductions. Any rental
rebates, rollbacks or the like mandated with respect to the period of Seller's
ownership of the Property shall be paid when due by Buyer.
Section 7.10 Attorneys' Fees. In the event any dispute between Buyer
and Seller should result in litigation, the prevailing party shall be reimbursed
for all reasonable costs incurred in connection with such litigation, including,
without limitation, reasonable attorneys' fees.
Section 7.11 Construction. The parties acknowledge that each party and
its counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any amendments or exhibits hereto.
Section 7.12 No Merger. The provisions of this Agreement shall not
merge with the delivery of the Deed but shall, except as otherwise provided in
this Agreement, survive the close of escrow.
Section 7.13 Governing Law. This Agreement shall be construed and
interpreted in accordance with and shall be governed and enforced in all
respects according to the laws of the State of Illinois.
Section 7.14 Disclosure of Information.
(a) Certain Definitions. For purposes of this Section 7.14, the
following terms shall have the respective meanings assigned to them in this
subsection (a):
(i) "Affiliate" shall mean: any person or entity directly or indirectly
controlling, controlled by or under common control with the subject person or
entity; any person or entity owning or controlling 10% or more of the
outstanding voting securities of the subject entity; any officer, director or
partner of the subject entity; and any entity for which the subject person or
entity acts in the capacity of officer, director or partner;
(ii) "Buyer Group" shall mean Buyer and its Affiliates, and the
directors, officers, employees, partners, agents and representatives of such
parties but specifically excluding Epic/Savage Realty Partners and Cushman &
Wakefield;
(iii) "Metric" shall mean Metric Management, Inc., a Delaware
corporation;
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<PAGE>
Metric Institutional Realty Advisors, L.P., a California limited partnership,
Metric Realty Services, Inc., a Delaware corporation, and Metric Realty, an
Illinois general partnership; and
(v) "Disclosure Document" shall mean any offering circular, prospectus,
report, advertisement correspondence or other document which names or refers in
any manner, directly or indirectly to Metric any of their respective Affiliates
or Seller.
(b) Restrictions on Disclosure. Buyer agrees that, unless Buyer has
obtained the prior written consent of Metric, Buyer shall not release, publish
or otherwise distribute, and shall not authorize or permit any person or entity
(including without limitation any member of the Buyer Group) to release, publish
or otherwise distribute, to any person or entity other than Buyer's lawyers,
accountants and as required by applicable law or governmental authorities, and
other than to Metric or any of their respective Affiliates, any Disclosure
Document.
(c) Indemnification. Buyer and Buyer's principals shall indemnify and
hold harmless Metric, their respective Affiliates and Seller, and all directors,
officers, employees, partners, agents and representatives of such parties,
against and from any and all liability, losses, damages, costs and obligations
whatsoever (including without limitation attorneys fees and costs) which arise
out of or relate in any way to the release, publishing or other distribution of
any Disclosure Document by Buyer or by any person or entity (including without
limitation any member of the Buyer Group) whom Buyer has authorized or permitted
to release, publish or otherwise distribute such Disclosure Document but
specifically excluding Epic/Savage Realty Partners and Cushman & Wakefield.
Section 7.15 Damages. Buyer agrees that any liability of Seller under
any claim brought prior to the Closing Date pursuant to this Agreement or any
document or instrument delivered simultaneously or in connection with, or
pursuant to this Agreement, shall be limited solely to the Property, and no
other assets of Seller shall be subject to levy or execution. With respect to
any such claim brought following the Closing Date, any liability of Seller shall
be limited solely to the assets of Seller. In no event shall Buyer seek
satisfaction for any such obligation from any of the officers, shareholders,
directors or agents of Seller. Except with respect to a willful or voluntary
default by Seller of its obligation to convey the Property to Buyer as provided
in this Agreement, Buyer specifically waives any right to seek specific
performance of Seller's obligations under this Agreement and acknowledges that
its only remedy in the event of a breach of this Agreement by Seller shall be
the right (as limited by this Section 7.15) to seek money damages at law.
Section 7.16 Termination without Breach. In the event either party
desires to exercise any right expressly provided in this Agreement to terminate
this Agreement, such party shall give written notice of such termination and the
reason therefor to the other party. Thereafter, except in the event of a
termination based upon a default by either party in the performance of its
obligations under this Agreement, and effective as of the effective date of such
notice, each party shall be released from its obligations hereunder and all
monies and documents deposited into
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<PAGE>
Escrow shall be returned to the party which deposited them, all documents
delivered by Seller to Buyer relating to the Property shall be returned to
Seller; provided, however, that nothing herein shall limit Buyer's indemnity set
forth in Section 2.3(b) and 7.14(c) hereof.
Section 7.17 Counterparts. This Agreement may be executed in one or
more counterparts. All counterparts so executed shall constitute one contract,
binding on all parties, even though all parties are not signatory to the same
counterpart.
Section 7.18 Entire Agreement. This Agreement and the attached
exhibits, which are by this reference incorporated herein, and all documents in
the nature of such exhibits, when executed, contain the entire understanding of
the parties and supersede any and all other written or oral understanding.
Section 7.19 Tax-Free Exchange. Buyer desires to exchange other
property of like kind and qualifying use within the meaning of Section 1031 of
the Internal Revenue Code of 1986, as amended, and the Regulations promulgated
thereunder, for fee title to the Property, and in this regard Buyer expressly
reserves the right to assign its rights, but not its obligations, under this
Agreement to a Qualified Intermediary as provided in IRC Reg. 1.1031 (k)-1(g)(4)
on or before the Closing Date, provided that same shall result in no delay in
the Closing Date, be at no cost or expense to Seller, and Seller shall not be
obligated to take title to any property in respect thereof.
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of
the day and year first written above.
SELLER:
METRIC INCOME TRUST SERIES, INC.,
a California corporation
By: /s/ R.A. Fiddaman
-----------------------------
Its: President
-----------------------------
BUYER:
T.L. SWINT INDUSTRIES,
an Illinois corporation
By: /s/ Thomas L. Swint
-----------------------------
Its: President
-----------------------------
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<PAGE>
EXHIBIT A
Legal Description
The following described real property, situated in the County of Cook
and State of Illinois, known and described as follows, to wit:
PARCEL ONE: Lot G-3 in Orland Square Planned Development Unit Number
G-3, being a subdivision of a tract of land in the West 1/2 of the
Southwest 1/4 of Section 10, Township 36 North, Range 12 East of the
Third Principal Meridian, in Cook County, Illinois.
PARCEL TWO: A non-exclusive easement for the benefit of Parcel One
above as established by and contained in Article X, paragraph H,
subparagraph (b) (i) of the Easement and Operating Agreement dated
March 15, 1976 and recorded August 10, 1976 as Document Number
23591873, and as created by Deed dated March 13, 1981 and recorded
March 25, 1981 as Document Number 25817163, for access, ingress and
egress to Parcel One, in Cook County, Illinois.
<PAGE>
EXHIBIT B
List of Due Diligence Items
1. Lease with Tenant and Amendment thereto.
2. Most recent property tax bill.
3. Copy of Seller's Title Insurance Policy and exceptions referred to therein.
4. Copies of approvals from Urban Investment and Development Co. (dated
October 29, 1987) and the Village of Orland Park (dated February 12, 1988)
to the redevelopment of the Real Property.
5. Copy of the Architect's Certificate with respect to the Real Property dated
November 29, 1989.
6. Copy of Zoning Letter from Orland Park dated November 17, 1989.
7. Copy of Certificate of Compliance and Occupancy from the Village of Orland
Park dated July 30, 1988.
8. Copy of the Village of Orland Park Receipt of Fees dated May 5, 1988.
9. Copy of Survey of Real Property dated February 4, 1988, last revised
November 16, 1989.
<PAGE>
EXHIBIT C
M E M O R A N D U M
TO: PORTFOLIO ACCOUNTING LEGAL
Chui-San Lok Herm Howerton
ASSET MANAGEMENT RISK MANAGEMENT
Ron Zuzack George Fogelsong
Ted Koros
Lorenz Menrath
Kathy Peterson
cc: Sandford T. Zatcoff
Property Sales Closing File
FROM: Minton Newell
DATE: May 24, 1996
SUBJECT: INTERNAL DUE DILIGENCE:
Pearle Vision, Orland Park, IL (MITS)
RESPONSE MANDATORY
Pursuant to the proposed Agreement for Purchase and Sale by and between Metric
Income Trust Series and T.L. Swint Industries, we are required to provide a
certification to the buyer relative to our knowledge of certain conditions which
may affect the property.
Please carefully read and review the attached. They are the pages from the
contract which outline the warranties and representations we will be making as
of the close of escrow (scheduled for 6/15/96). If you currently have knowledge
of any facts which would make these representations untrue or incorrect, please
immediately advise Marlene Weber at extension 2104. If you have no such
knowledge, please advise accordingly. Send your signed copy of this statement to
Marlene Weber. We must have your response by Friday, May 31, 1996.
We will also be required to make these same representations as of the closing
date; should you become aware of any fact which would make these representations
untrue prior to the closing date, please contact me immediately.
<PAGE>
Pearle Vision Store Page 2
MITS
Internal Due Diligence
May 24, 1996
I have no knowledge of any facts which would make the attached representations
untrue as of this date except as noted below.
EXCEPTIONS:
None
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
H.H. Howerton Ronald E. Zuzack George M. Foglesong
- ------------------------- --------------------- ----------------------
Printed Name Prined Name Prined Name
\s\ H.H. Howerton \s\ Ronald E. Zuzack \s\George M. Foglesong
- ------------------------- --------------------- ----------------------
Signature Sigature Sigature
5-24-96 5-24-96 5-27-96
- ------------------------- --------------------- ----------------------
Date Date Date
Lorenz Menrath Theodore P. Koros Chui-San Lok
- ------------------------- --------------------- ----------------------
Printed Name Printed Name Prined Name
\s\ Lorenz Menrath \s\ Theodore P. Koros \s\ Chui-San Lok
- ------------------------- --------------------- ----------------------
Signature Signature Sigature
5-29-96 6-04-96 8-28-96
- ------------------------- --------------------- ----------------------
Date Date Date
<PAGE>
ATTACHMENT
[Copy of Section 4.1(b) of Purchase and Sale Agreement To Be Attached]
<PAGE>
EXHIBIT D
Form of Transfer Tax Declaration
Cook County and Illinois State Real Estate Transfer Declarations not filed with
this Amendment. Metric Income Trust Series, Inc. agrees to provide the
Securities and Exchange Commission copies of said Declarations upon request.
<PAGE>
EXHIBIT E
Form of Deed
SPECIAL WARRANTY DEED
(Illinois)
96530422
Dept - 01 Recording $33.00
T#0012 Tran 1283 7/11/96 15:09:00
#1425 #CG #-96-530422
Cook County Recorder
Above Space for Recorder's Use Only
THIS INDENTURE, made this 10th day of July, 1996, between METRIC INCOME TRUST
SERIES, INC., a California corporation doing business in Illinois as Metric
Income Series, Inc., party of the first part, and T.L. SWINT INDUSTRIES, INC.,
an Illinois corporation, party of the second part, having an address at 7103
Sands Road, Crystal Lakes, Illinois 60014; WITNESSETH, THAT, the party of the
first part, for and in consideration of the sum of Ten and No/100 Dollars
($10.00) in hand paid by the party of the second part to the party of the first
part, and other good and valuable consideration, the receipt whereof is hereby
acknowledged, by these presents does REMISE, RELEASE, ALIEN AND CONVEY unto the
party of the second part, and to its successors and assigns, FOREVER, all of the
following described real property, situated in the County of Cook and State of
Illinois, known and described as follows, to wit:
PARCEL ONE: Lot G-3 in Orland Square Planned Development Unit Number
G-3, being a subdivision of a tract of land in the West 1/2 of the
Southwest 1/4 of Section 10, Township 36 North, Range 12 East of the
Third Principal Meridian, in Cook County, Illinois.
- --------------------------------------------------------------------------------
This instrument was prepared by:
Sanford H. Zatcoff, Esq.
Holt, Ney, Zatcoff & Wasserman
100 Galleria Parkway
Suite 600 Atlanta, Georgia 30339
Send subsequent tax bill to:
T.L. Swint Industries, Inc.
7103 Sands Road
Crystal Lake, Illinois 60014
After recording, this instrument should be mailed to:
Lawrence J. Moss, Esq.
D'Ancona & Pflaum
Suite 2900
30 North LaSalle Street
Chicago, Illinois 60602
Recorder's Box: 389-LJM
<PAGE>
PARCEL TWO: A non-exclusive easement for the benefit of Parcel One
above as established by and contained in Article X, paragraph H,
subparagraph (b) (i) of the Easement and Operating Agreement dated
March 15, 1976 and recorded August 10, 1976 as Document Number
23591873, and as created by Deed dated March 13, 1981 and recorded
March 25, 1981 as Document Number 25817163, for access, ingress and
egress to Parcel One, in Cook County, Illinois.
TOGETHER WITH all and singular the hereditaments and appurtenances
thereunto belonging, or in anywise appertaining, and the reversion and
reversions, remainder and remainders, rents, issues and profits thereof, and all
the estate, right, title, interest, claim or demand whatsoever, of the party of
the first part, either in law or equity, or, in and to the above described
premises, with the hereditaments and appurtenances: TO HAVE AND TO HOLD the said
premises as above described, with the appurtenances, unto the party of the
second party, its successors and assigns FOREVER.
And the said party of the first part, for itself and its heirs,
successors and assigns, does covenant, promise and agree, to and with the party
of the second part, its successors and assigns, that it has not done or suffered
to be done, anything whereby the said premises hereby granted are, or may be, in
any manner encumbered or charged, except as herein recited; and that the said
premises, against all persons lawfully claiming, or to claim the same, by,
through or under it, it WILL WARRANT AND DEFEND, subject to those matters set
forth on Exhibit A attached hereto and made a part hereof.
The real property herein conveyed is not the party of the first part's
homestead.
PERMANENT REAL ESTATE INDEX NUMBER(S): 27-10-300-027-0000, Volume
146.
Address of Real Estate: 24 Orland Square Drive, Orland Park, Illinois.
[State of Illinois Real Estate Transfer Tax Stamps]
-2-
<PAGE>
IN WITNESS WHEREOF, the said party of the first part has signed, sealed
and delivered this Special Warranty Deed, the day and year first above written.
METRIC INCOME TRUST SERIES, INC., a
California corporation doing business in
Illinois as Metric Income Series, Inc.
By: /s/Robert A. Fiddaman
---------------------
Name: Robert A. Fiddaman,
---------------------
Title: President
---------------------
Attest: /s/Herman H. Howerton
---------------------
Name: Herman H. Howerton
---------------------
Title: Secretary
---------------------
(CORPORATE SEAL)
-3-
<PAGE>
STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
I, Tana J. Laura, a notary public in and for the state and county
aforesaid, DO HEREBY CERTIFY that Robert A. Fiddaman and Herman H. Howerton,
personally known to me to be the President and Secretary of Metric Income Trust
Series, Inc., a California corporation doing business in Illinois as Metric
Income Series, Inc. (the "Corporation") and known to me to be the same persons
whose names are subscribed to the foregoing instrument as the President and
Secretary of the Corporation, appeared before me this day in person and
acknowledged that they signed, sealed and delivered the said instrument as the
free act and deed of the Corporation for the uses and purposes therein set
forth.
GIVEN under my hand and official seal this 10th day of July, 1996.
/s/Tana J. Laura
-------------------------------
Notary Public
(NOTARY SEAL)
My Commission expires: 12/9/96
-4-
<PAGE>
EXHIBIT A
1. All unpaid taxes and assessments for 1995 and subsequent years, not yet due
and payable.
2. Easement grant dated April 22, 1969, recorded May 1, 1969 as Document
Number 20827449, Cook County, Illinois records, to the Village of Orland
Park, a municipal corporation of Illinois, its successors and assigns, for
a perpetual easement for the full and free right and authority to install,
construct, and otherwise establish, and to operate and maintain water
mains, fire hydrants, valves and water service facilities incidental
thereto, sanitary sewer pipes, manholes, sewer connections and facilities
incidental thereto, and storm sewer pipes and storm sewer service
connections and facilities incidental thereto, in, on, upon, over, through
and across or under the West 70 feet of the real property herein described;
together with a temporary easement for the construction of the foregoing
and storage of material over the East 50 feet of the West 120 feet of said
real property; and the covenants and conditions therein contained.
3. Easement grant dated January 26, 1970, recorded February 3, 1970 as
Document Number 21072709, aforesaid records, to the Village of Orland Park,
a municipal corporation of Illinois, its successors and assigns, for a
perpetual easement for the full and free right and authority to install,
construct, and otherwise establish, and to operate and maintain water
mains, fire hydrants, valves and water service facilities incidental
thereto, sanitary sewer pipes, manholes and sewer connections and
facilities incidental thereto, and storm sewer pipes and storm sewer
service connections and facilities incidental thereto, in, on, upon, over,
through and across or under the East 20 feet of the West 310 feet of the
South 3/4 of the South West 1/4 of Section 10, and also the South 10 feet
of the West 310 feet of the North West 1/4 of the North West 1/4 of the
South West 1/4 of Section 10, and also the North 10 feet of the West 310
feet of the South West 1/4 of the North West 1/4 of the South West 1/4 of
Section 10, together with a temporary easement for construction of the
foregoing and storage of materials over the East 25 feet of the West 335
feet and the East 25 feet of the West 290 feet of the South 314 feet of the
South West 1/4 of Section 10, also the North 40 feet of the South 50 feet
of the West 310 feet of the North West 1/4 of the Northwest 1/4 of the
South West 1/4 of Section 10, also the South 40 feet of the North 50 feet
of the West 310 feet of the South West 1/4 of the North West 1/4 of the
South West 1/4 of Section 10 aforesaid; and the covenants and the covenants
and conditions therein contained.
4. Right-of-way grant dated March 8, 1974, recorded April 1, 1974 as Document
Number 22670809, aforesaid records, granting to Texas Eastern Transmission
Corporation, a Delaware corporation, it successors and assigns, a
Right-of-Way and Easement to construct, lay, maintain, operate, alter,
repair, remove, change the size of and replace one pipe line and
appurtenances thereto (including without limitation, corrosion control
equipment) for the transportation of oil, gas, petroleum products or any
other liquids, gases, or substances which can be transported through a pipe
line, under, upon, over and through the real property herein described, and
the permanent right-of-way shall be 40
<PAGE>
feet along the route shown on Exhibit II attached to said grant.
5. Easement in, upon, under, over and along the portion shown in Exhibit II
attached to the grant of the land to install and maintain all equipment for
the purpose of serving the land and other property with gas service,
together with right of access to said equipment, as created by Grant of
easement to Northern Illinois Gas Company dated December 3, 1974, recorded
February 3, 1975 as Document Number 22984356, aforesaid records.
6. The following disclosed by plat of subdivision of Orland Square Planned
Development Unit No. G-3, aforesaid records:
(A) Easement over the Easterly 10 feet of Lot G-3 reserved for traffic
control and directional signs, for the purpose of installing, constructing,
placing, repairing and maintaining said signs for control of traffic within
"Orland Square Planned Development," as shown on the plat of subdivision
recorded as Document 25802755, aforesaid records.
(B) Easement over the South 10 feet and approximately the East 20 feet of
the West 70 feet of Lot G-3 as shown on the plat of subdivision, reserved
for utilities for purposes of constructing, reconstructing, operating,
repairing and maintaining underground utility service lines (both public
and private), including but not limited to gas, electricity, telephone,
water, sanitary sewer and storm sewer, and all appurtenances thereto, as
shown on the plat of subdivision aforesaid recorded as Document 25802755,
aforesaid records.
(C) Easement over the West 10 feet of Lot G-3 reserved for pedestrian walk
as shown on the plat of subdivision recorded as Document 25802755,
aforesaid records.
(D) Covenants and restrictions regarding construction over said platted
easements, as contained on plat of subdivision recorded as Document Number
25802755, aforesaid records.
7. Terms, provisions and conditions relating to the easement described as
Parcel Two contained in the instruments creating such easements. (Affects
Parcel Two)
8. Rights of the adjoining owner or owners to the concurrent use of the
easement described as Parcel Two. (Affects Parcel Two)
9. Covenants, conditions and restrictions contained in Covenants, Conditions
and Restrictions Agreement dated March 13, 1981, recorded March 25, 1981 as
Document Number 25817165, aforesaid records.
10. Terms, provisions and conditions contained in Lease Agreement dated
February 18, 1987 by and between Anthony A. Petrarca, Lessor, and Eyelab,
Inc., Lessee, as assigned by Anthony A. Petrarca to Metric Income Trust
Series, Inc. by Assignment of Lease and Intangible Property dated November
29, 1989, as amended.
<PAGE>
11. Claim or claims of a right, title or interest in and to the real property
herein described by Forsythia Realty Corporation or Vistabella Realty
Corporation, or their respective successors and assigns, arising out of
those matters which are the subject of that certain pending lawsuit styled
Anthony A. Petrarca v. Forsythia Realty Corporation and Vistabella Realty
Corporation, in Case No. 89-C-3070 in the United States District Court for
the Northern District of Illinois, Eastern Division.
12. Rights of The Commonwealth Edison Company as disclosed by utility line
within the north 10 feet of the real property herein described, as
disclosed by survey dated February 4, 1986, updated May 11, 1988, December
27, 1988, February 7, 1989 and October 11, 1989 made by Joseph A. Schudt
and Associates, Project No. 87-132215.
<PAGE>
EXHIBIT F
Form of General Assignment
GENERAL ASSIGNMENT
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby expressly acknowledged, METRIC INCOME TRUST SERIES, INC., a California
corporation ("Assignor"), hereby assigns, transfers and conveys to T.L. SWINT
INDUSTRIES, an Illinois corporation ("Assignee"), all of Assignor's right, title
and interest in and to the Intangible Property, as that term is defined in that
certain Agreement for Purchase and Sale of Real Property (the "Agreement") dated
as of May 16, 1996 entered into by and between Assignor, as Seller, and
Assignee, as Buyer.
Assignee hereby assumes and agrees to keep, perform and fulfill all of
Assignor's obligations as obligor under any of the following contracts (the
"Assigned Contracts"): that certain Lease Agreement dated February 18, 1988
between Anthony A. Petrarca as, Landlord, and Eyelab, Inc., as Tenant, as
assigned by Anthony A. Petrarca to Assignor by Assignment of Lease and
Intangible Property dated November 29, 1989, as amended through the date hereof;
any service contracts pertaining to the Real Property (as defined in the
Agreement), any governmental licenses, permits and approvals held by Assignor
relating to the occupancy or use of the Real Property, and any existing
warranties held by Assignor and given by third parties with respect to the Real
Property. Assignee also agrees to indemnify, protect, defend and hold Assignor
harmless from and against any and all claims, damages, losses, costs and
expenses (including attorneys' fees) arising in connection with the Assigned
Contracts and relating to the period after Closing.
Assignor hereby covenants and warrants that it has performed all of the
obligations to be performed by Assignor pursuant to and in accordance with, or
with respect to, the Assigned Contracts and agrees to indemnify, protect, defend
and hold Assignee harmless from and against any and all claims, damages, losses,
costs and expenses (including attorneys' fees) arising in connection with the
Assigned Contracts and relating to the period prior to Closing.
This General Assignment is given pursuant to the Agreement.
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this General
Assignment as of July 10, 1996.
ASSIGNOR:
METRIC INCOME TRUST SERIES, INC.,
a California corporation
By: \s\ Robert A. Fiddaman
-----------------------------
Its: President
-----------------------------
-2-
<PAGE>
ASSIGNEE:
T.L. SWINT INDUSTRIES, an Illinois
corporation
By: Thomas L. Swint
-----------------------------
Its: President
-3-
<PAGE>
EXHIBIT G
Form of Bill of Sale
BILL OF SALE
For valuable consideration, receipt of which is acknowledged, METRIC
INCOME TRUST SERIES, INC., a California corporation, ("Seller"), grants, sells,
transfers and assigns to T.L. SWINT INDUSTRIES, an Illinois corporation
("Buyer"), all of the personal property described in Schedule 1 attached hereto
and by this reference incorporated herein. Buyer acknowledges and agrees that
such personal property is sold to and shall be accepted by Buyer in its "As-Is"
condition and WITH ALL FAULTS and without any representation of any kind or
nature except to the extent, if any, specifically made in that certain Agreement
for Purchase and Sale of Real Property dated as of May 16, 1996 between Seller
and Buyer.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale this 10th day
of July, 1996.
SELLER:
METRIC INCOME TRUST SERIES, INC.,
a California corporation
By: \s\ Robert A. Fiddaman
-----------------------------
Its: President
-----------------------------
<PAGE>
STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
I, Tana J. Laura, a notary public in and for the state and county
aforesaid, DO HEREBY CERTIFY that Robert A. Fiddaman and Herman H. Howerton,
personally known to me to be the President and Secretary of Metric Income Trust
Series, Inc., a California corporation doing business in Illinois as Metric
Income Series, Inc. (the "Corporation") and known to me to be the same persons
whose names are subscribed to the foregoing instrument as the President and
Secretary of the Corporation, appeared before me this day in person and
acknowledged that they signed, sealed and delivered the said instrument as the
free act and deed of the Corporation for the uses and purposes therein set
forth.
GIVEN under my hand and official seal this 10th day of July, 1996.
/s/Tana J. Laura
-------------------------------
Notary Public
(NOTARY SEAL)
My Commission expires: 12/9/96
-2-
<PAGE>
SCHEDULE 1
Schedule of Personal Property
None
-3-
<PAGE>
EXHIBIT H
Form of Assignment of Lease
ASSIGNMENT OF LEASE
This ASSIGNMENT is entered into this 10th day of July, 1996, by and
between METRIC INCOME TRUST SERIES, INC., a California corporation ("Assignor"),
and T.L. SWINT INDUSTRIES, an Illinois corporation ("Assignee").
RECITALS
A. Assignor is the landlord under that certain lease described on
Schedule 1 attached hereto (the "Lease") relating to that certain real property
described in Schedule 2 attached hereto (the "Property").
B. Assignor and Assignee are parties to that certain Agreement for
Purchase and Sale of Real Property dated as of May 16, 1996 pursuant to which
Assignor has agreed to sell and Assignee has agreed to purchase the Property and
Assignor has agreed to assign and Assignee has agreed to assume the Lease.
For valuable consideration, receipt of which is acknowledged, Assignor
and Assignee agree as follows:
1. Assignor assigns to Assignee all of the right, title and interest of
Assignor in the Lease.
2. Assignor agrees to indemnify and hold Assignee harmless from and
against any and all losses, costs, liabilities, damages and expenses, including,
without limitation, reasonable attorneys' fees, accruing prior to the date
hereof and arising out of the Lease.
3. Assignee assumes as of and from the date hereof all of Assignor's
obligations under the Lease.
4. Assignee agrees to indemnify and hold Assignor harmless from and
against any and all losses, costs, liabilities, damages and expenses including,
without limitation, reasonable attorneys' fees, accruing on or after the date
hereof and arising out of the Lease.
5. If Assignor or Assignee is required to employ counsel to enforce any
of the terms of this Agreement or for damages by reason of any alleged breach of
this Agreement or for a declaration of rights hereunder, the prevailing party
shall be entitled to recover its reasonable attorneys' fees and court costs
incurred.
6. This Assignment shall be binding on, and inure to the benefit of,
the parties hereto, their successors in interest, and assigns.
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
as of the day and year first hereinabove written.
ASSIGNOR:
Signed sealed and delivered
in the presence of: METRIC INCOME TRUST SERIES, INC.,
a California corporation
\s\ Marlene Weber
- ------------------
Unofficial Witness
\s\ Tana J. Laura By: \s\ Robert A. Fiddaman
- ------------------ ------------------------------
Notary Public
Its: President
------------------------------
(NOTARY SEAL)
2
<PAGE>
ASSIGNEE:
Signed sealed and delivered
in the presence of: T.L. SWINT INDUSTRIES, an Illinois
corporation
\s\
- ------------------
Unofficial Witness
\s\ Rose Zawacki By: Thomas L. Swint
- ------------------ ------------------------------
Notary Public
Its: President
------------------------------
(NOTARY SEAL)
3
<PAGE>
SCHEDULE 1
Schedule of Lease
Lease Agreement dated February 18, 1988 between Anthony A. Petrarca as Landlord
and Eyelab, Inc., as Tenant, as assigned by Anthony A. Petrarca to Metric Income
Trust Series, Inc. by Assignment of Lease and Intangible Property dated November
29, 1989, as amended through the date hereof.
<PAGE>
SCHEDULE 2
Legal Description
PARCEL ONE: Lot G-3 in Orland Square Planned Development Unit Number
G-3, being a subdivision of a tract of land in the West 1/2 of the
Southwest 1/4 of Section 10, Township 36 North, Range 12 East of the
Third Principal Meridian, in Cook County, Illinois.
PARCEL TWO: A non-exclusive easement for the benefit of Parcel One
above as established by and contained in Article X, paragraph H,
subparagraph (b) (i) of the Easement and Operating Agreement dated
March 15, 1976 and recorded August 10, 1976 as Document Number
23591873, and as created by Deed dated March 13, 1981 and recorded
March 25, 1981 as Document Number 25817163, for access, ingress and
egress to Parcel One, in Cook County, Illinois.
<PAGE>
EXHIBIT I
Form of FIRPTA Certificate
FIRPTA Certificate
To inform T.L. SWINT INDUSTRIES, an Illinois corporation
("Transferee"), that withholding of tax under Section 1445 of the Internal
Revenue Code of 1986, as amended (the "Codes"), will not be required upon
transfer of certain real property to Transferee by METRIC INCOME TRUST SERIES,
INC., a California corporation, ("Transferor"), the undersigned hereby certifies
the following on behalf of Transferor:
1. Transferor is not a foreign person, foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined in the
Code and the Income Tax Regulations promulgated thereunder);
2. Transferor's U.S. employer identification/social security number is
as follows: 94-3087630.
3. Transferor's office address is: c/o Metric Realty, 1 California
Street, Suite 1400, San Francisco, California 94111-5415.
Transferor understands that this Certification may be disclosed to the
Internal Revenue Service by Transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Transferor understand that Transferee is relying on this Certification
in determining whether withholding is required upon said transfer.
Transferor hereby agrees to indemnify, protect, defend and hold
Transferee harmless from and against any and all obligations, liabilities,
claims, losses, actions, causes of action, rights, demands, damages, costs and
expenses of every kind, nature or character whatsoever (including, without
limitation, attorneys' and paralegals' fees and costs and court costs) incurred
by Transferee as a result of: (i) Transferor's failure to pay U.S. Federal
income tax which the Transferor is required to pay under applicable U.S. arising
in connection with the subject transaction; or (ii) any false or misleading
statement contained herein.
<PAGE>
Under penalty of perjury I declare that I have examined this
Certification and to the best of my knowledge and belief it is true, correct and
complete, and I further declare that I have authority to sign this document on
behalf of Transferor.
Date: July 10, 1996
TRANSFEROR:
METRIC INCOME TRUST SERIES, INC.,
a California corporation
By: \s\ Robert A. Fiddaman
------------------------------
Its: President
------------------------------
2
<PAGE>
EXHIBIT J
Form of Title Insurance Policy
Chicago Title Insurance Company Commitment for Title Insurance, Order No.: 1401
007606623 D1, effective June 26, 1996 not filed with this Amendment. Metric
Income Trust Series, Inc. agrees to provide the Securities and Exchange
Commission a copy of said Policy upon request.
<PAGE>
EXHIBIT K
Form of Affidavit of Title
Affidavit of Title not filed with this Amendment. Metric Income Trust Series,
Inc. agrees to provide the Securities and Exchange Commission a copy of said
Affidavit upon request.
<PAGE>
EXHIBIT L
Form of Illinois Department of Revenue
Notice of Sale or Purchase of Business Assets
Illinois Department of Revenue Form NUC-542-A, Notice of Sale or Purchase of
Business Assets, not filed with this Amendment. Metric Income Trust Series, Inc.
agrees to provide the Securities and Exchange Commission a copy of said Form
upon request.
<PAGE>
EXHIBIT M
Form of Letter to Tenant
Letter to Tenant
July 10, 1996
Pearle Vision, Inc.
==========================
Re: Lease Agreement (the "Lease") dated February 18, 1988 between Anthony
A. Petrarca, as Landlord and Eyelab, Inc., as Tenant, as assigned by
Anthony A. Petrarca to Metric Income Trust Series, Inc. by Assignment
of Lease and Intangible Property dated November 29, 1989, as amended
through the date hereof, with respect to approximately 5,888 square
foot free-standing retail store located at 24 Orland Square Drive,
Orland Park, Illinois
Gentlemen:
You are hereby notified that Metric Income Trust Series, Inc. has sold
its fee interest in the property located at 24 Orland Square Drive, Orland Park,
Illinois and has assigned its interest as Landlord under your Lease to T.L.
Swint Industries ("Buyer").
You are further notified that any prepaid rents under your Lease have
been transferred to Buyer.
You are further notified that commencing as of the date hereof, all
rental payments under your Lease should be paid to Buyer. Please make your rent
checks payable to T.L. Swint Industries, Inc., and please mail the rent checks
to 7103 Sands Road, Crystal Lake, Illinois 60014.
Please have a new insurance certificate issued with respect to all
insurances which you are required to carry pursuant to the Lease naming T.L.
Swint Industries as the Owner and Landlord instead of Metric Income Trust
Series, Inc., and send the new insurance certificate to the address in the
preceding paragraph.
<PAGE>
Any written notices you desire or are required to make to the Landlord
under your lease should be sent to the Buyer at the above address.
Very truly yours,
METRIC INCOME TRUST SERIES, INC.
By:\s\ Robert A. Fiddaman
Robert A. Fiddaman
President
<PAGE>
EXHIBIT N
Form of Estoppel Certificate
June 19, 1996
Re: Lease Agreement dated February 18, 1988 between Anthony A. Petrarca, as
Lessor, and Pearle Vision, Inc., f/k/a Eyelab, Inc. ("Lessee"), as
Tenant, as assigned by Anthony A. Petrarca to Metric Income Trust
Series, Inc. ("Lessor") by Assignment of Lease and Intangible Property
dated November 29, 1989, as amended through the date hereof (the
"Lease") with respect to an approximately 5,888 square foot
free-standing retail store located at 24 Orland Square Drive, Orland
Park, Illinois
Gentlemen:
Lessee understands that T.L. Swint Industries, an Illinois corporation,
is considering acquiring the above-referenced building (the "Building") and has
requested certain information from Lessee relative to its Lease.
Therefore, with respect to the Lease, Lessee hereby acknowledges the
following:
1. A complete, true and accurate copy of the Lease and all
amendments or modifications thereto is attached hereto as
Schedule 1.
2. Lessee has accepted the premises demised under the Lease.
3. The Commencement Date of the Lease is August 1, 1988 and the
term will terminate on September 30, 2002, subject to two five
year renewal options.
4. Lessee has paid Lessor a security deposit under the Lease in
the amount of $ -0-.
5. Current base monthly rental under the Lease is $11,000.00
which has been paid through and including June 30, 1996.
<PAGE>
6. To Lessee's actual knowledge, there are no defaults of Lessor
under the Lease nor any existing conditions which upon the
giving of notice or lapse of time or both would constitute a
default under the Lease except as follows:
7. Lessee has been billed and has paid $812.00 for insurance
reimbursement to Lessor applicable to the period of time
commencing October 1, 1994 through October 1, 1995.
Lessee:
PEARLE VISION, INC.
By:\s\ Suk Singh
----------------------
Suk Singh
Its: Vice President
--------------------
Dated: June 19, 1996 Real Estate Construction
<PAGE>
SCHEDULE 1
Lease
Lease by and between Anthony A. Petrarca (Landlord) and Eyelab, Inc. (Tenant)
not filed with this Amendment. Metric Income Trust Series, Inc. agrees to
provide the Securities and Exchange Commission a copy of said lease upon
request.
