FORM 8-K/A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CURRENT REPORT
AMENDMENT NO. 1
TO FORM 8-K FILED December 23, 1996
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
December 19, 1996
-----------------
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
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(Registration (IRS Employer (State or Other
File Identification Jurisdiction of
Number) Number) Incorporation)
One California Street, San Francisco, California 94111-5415
-----------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(415) 678-2000
(800) 347-6707 Watts line for all states
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION
AND EXHIBITS
(a) Exhibit
Earnest Money Contract for Stop N Go store located in Harris County
(Houston), Texas dated December 3, 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: January 29, 1997
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EARNEST MONEY CONTRACT - COMMERCIAL IMPROVED PROPERTY
THIS CONTRACT FORM HAS BEEN PREPARED AND APPROVED FOR USE IN A TRANSACTION
INVOLVING THE SALE OF IMPROVED COMMERCIAL PROPERTY. SUCH APPROVAL RELATES TO
THIS CONTRACT FORM ONLY. THIS FORM HAS NOT BEEN DRAFTED FOR A SPECIFIC
TRANSACTION AND NO REPRESENTATION IS MADE AS TO THE LEGAL VALIDITY OR ADEQUACY
OF ANY PROVISION IN ANY SPECIFIC TRANSACTION. TERMS AND PROVISIONS THAT ARE NOT
APPLICABLE SHOULD BE STRICKEN BY THE PARTIES. THE PARTIES ARE ADVISED TO CONSULT
THEIR ATTORNEYS BEFORE SIGNING.
1. PARTIES: METRIC REAL ESTATE, L.P., a California limited partnership
("Seller"), agrees to sell and convey to RICHARD C. DUNSAY, an
individual ("Buyer"), and Buyer agrees to buy from Seller, the
following property for the consideration and upon and subject to the
terms, provisions, and conditions hereinafter set forth.
2. PROPERTY: Those parcels of land located in the County of Harris, State
of Texas and more particularly described as set forth on Exhibit A
attached hereto and incorporated herein ("Land"); together with all
buildings, improvements, fixtures, and all property of every kind and
character and description owned by Seller located on or attached to the
Land ("Improvements"); all privileges, and appurtenances pertaining
thereto including any right, title and interest of Seller in and to
adjacent streets, alleys, or rights-of-way; Seller's interest in and to
all licenses and permits with respect to the Property, Seller's
interest in all leases, service, maintenance, management or other
contracts relating to the ownership or operation of the Property;
Seller's interest in all warranties or guaranties relating to thereto
or to any tangible personal property and fixtures located on or
attached to the Land or Improvements; all of the above hereinafter
collectively called "Property".
3. CONTRACT SALES PRICE:
A. Cash payable at closing (inclusive of
Deposit described in Paragraph 5) $460,000
B. Amount of Third Party Financing
(see Paragraph 4) $950,000
C. Total Sales Price (Sum of A and B) $1,410,000
4. THIRD PARTY FINANCING: If Paragraph 3B is applicable, Buyer's
obligation to purchase the Property pursuant to this Contract is
subject to approval of a loan to Buyer by a third party in the minimum
amount specified in Paragraph 3B above at an interest rate and upon
terms reasonably acceptable to Buyer. Buyer shall use reasonable
efforts to obtain loan approval. This loan approval contingency shall
be satisfied or waived in writing by Buyer on or before December 12,
1996 ("Loan Approval Date"). This Contract shall automatically
terminate upon close of business on the Loan Approval Date unless Buyer
has in writing acknowledged receipt of loan approval or waived this
loan approval contingency. All fees and costs relating to such loan
shall be paid by Buyer.
5. EARNEST MONEY: As a condition precedent to the validity of this
Contract, Buyer tenders herewith the sum of $50,000 to be deposited as
earnest money in escrow with Chicago Title Insurance Company, 388
Market Street, Suite 1300, San Francisco, California, Attn: Beth
Bailey-Gates ("Title Company"), and placed in an interest bearing
account, upon execution of the Contract by both parties. The amount so
deposited and any interest earned thereon is hereinafter referred to as
the "Deposit". Upon expiration of the Inspection Period (as defined
below), except as expressly provided to the contrary in this Contract,
the Deposit shall become non-refundable to Buyer except in the event of
Seller's default in the performance of its obligations under this
Contract.
6. CLOSING: The closing of the sale ("Closing") shall take place at the
Title Company on or before 5 p.m., on December 20, 1996 ("Closing
Date"), unless such date is changed in writing by Seller and Buyer, or
otherwise extended as herein provided.
A. At the Closing, Seller shall deliver to escrow, at Seller's sole
cost and expense, the following:
(1) A duly executed and acknowledged Special Warranty
Deed conveying good and indefeasible title in fee
simple to all of the Land and Improvements, subject
only to the Approved Title Matters (as such term is
defined in Paragraph 12 hereof) and/or as otherwise
approved by Buyer in writing;
(2) A Bill of Sale conveying title, free and clear of all
liens, to any personal property specified herein and
to the extent assignable, licenses and permits,
maintenance, management or other contracts,
warranties or guaranties if any, duly executed by
Seller;
(3) Evidence of its capacity and authority for the
Closing of this transaction;
(4) Original (or copy if the original is unavailable) of
that certain lease dated November 30, 1989 by and
between Seller and National Convenience Stores
Incorporated ("Tenant"), as amended (the "Lease");
(5) Certification of Seller's non-foreign status;
(6) A tenant notice letter advising Tenant of the
transfer of the Property and the disposition of its
security deposit ("Tenant Notice");
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(7) Notification pursuant to Section 230.005 of the Texas
Local Governmental Code in the form provided by
Seller to Buyer that the Property is restricted and
the municipality within whose boundaries it is
located is authorized to enforce the restrictions
("Deed Restriction Notice");
(8) Notification in the form provided by Seller to Buyer
that the Property is in a municipal utility district
("Municipal Utility District Notice");
(9) An Assignment of Lease in the form provided by Seller
to Buyer ("Lease Assignment"); and
(10) Subject to paragraph 6 of the Addendum attached
hereto and made a part hereof, all other necessary
documents to close this transaction as may be
reasonably requested by Title Company or Buyer's
tax-deferred exchange facilitator (the
"Facilitator").
B. At the Closing, Buyer shall deliver to escrow, at Buyer's sole
cost and expense, the following:
(1) The total Sales Price;
(2) Evidence of its capacity and authority for the
Closing of this transaction;
(3) Tenant Notice;
(4) Deed Restriction Notice;
(5) Municipal Utility District Notice;
(6) Lease Assignment; and
(3) All other necessary documents to close this
transaction as may be reasonably requested by Title
Company.
C. At the Closing, Title Company shall issue to Buyer its Owner's
Standard Coverage Policy of title insurance ("Title Policy")
in the full amount of the Sales Price, dated as of the Closing
Date, insuring Buyer's fee simple title to the Land and
Improvements subject only to the standard printed exceptions
contained in the usual form of Title Policy (with the survey
exception limited to "shortages in area"), non-delinquent real
property taxes and assessments, Approved Title Matters and
such other matters as Buyer may approve in writing; provided,
however, that Buyer shall be solely responsible for the cost
of any coverage in excess of that afforded by the standard
form of Title Policy, including, without limitation, any
endorsement premiums or charges and any cost incurred in
connection with the aforementioned survey exception
limitation.
7. FEASIBILITY STUDY AND INSPECTION: Buyer is granted the right to conduct
an engineering, and/or market and economic feasibility studies of the
Property, and a physical inspection of all improvements, fixtures,
mechanical equipment, and personal property being sold hereby
(collectively, "Inspections"). Buyer shall have from the Effective Date
through 5 P.M. on December 12, 1996 ("Inspection Period") to perform
such Inspections and in this regard, Buyer or his designated agents may
enter upon the Property upon reasonable notice at reasonable times for
purposes of such analysis, tests and inspections which may be deemed
necessary by Buyer. If Buyer determines, in his sole judgment, that the
Property is not suitable for any reason for Buyer's intended use or
purpose, or is not in satisfactory condition, then Buyer may, by
written notice to Seller ("Disapproval Notice") on or before the end of
the Inspection Period, terminate this Contract for all purposes (except
as provided herein) and the Deposit shall be returned to Buyer, less
(I) the sum of $100 to be delivered to and retained by Seller as
consideration for this Contract, which consideration is deemed earned
as of the date of this Contract, and (ii) any escrow or title
cancellation fees or charges of Title Company. If Buyer does not give
the Disapproval Notice prior to expiration of the Inspection Period,
any and all objections with respect to the Inspections and to the
condition and suitability of the Property shall be deemed to have been
waived by Buyer for all purposes. In the event the transaction
contemplated in this Contract shall not close, through no fault of
Seller, Buyer shall restore the Property to its original condition, if
changed due to the tests and inspections performed by Buyer, and shall
provide Seller with a copy of the results of any tests and inspections
made by Buyer, excluding any market and economic feasibility studies.
All Inspections shall be at Buyer's expense and Buyer shall indemnify,
protect, defend and hold Seller harmless from and against any damages,
liabilities, claims, demands, costs or expenses arising therefrom
(Buyer's obligations pursuant to this sentence shall survive Closing or
termination of this Contract).
BUYER AND SELLER ACKNOWLEDGE AND AGREE THAT THE ATTACHED ADDENDUM IS A
PART OF THIS CONTRACT AND SHALL BE APPLICABLE TO THE TRANSACTION
CONTEMPLATED HEREIN.
8. BROKER'S FEE: Arroyo & Coates, as broker ("Seller's Broker"), and
Cardinal Capital Partners, Inc., as selling or co-broker ("Buyer's
Broker"), each of whom is appropriately licensed as a real estate
broker as required by law (collectively, "Broker"), have negotiated the
transaction contemplated in this Contract. Upon Closing, Seller agrees
to pay Buyer's Broker a cash fee of $40,250, which Title Company shall
pay from the sales proceeds upon Closing. Seller agrees to pay Seller's
Broker its fee in accordance with Seller's separate agreement with
Seller's Broker. Each of the parties represents to the other that it
has not incurred any liability for brokerage fees or commission in
connection with this transaction other than the liability of Seller as
set forth above. Each party indemnifies and agrees to hold the other
party harmless from any and all claims and/or expense resulting to the
other party by reason of a breach of the representation made by such
party herein.
9. POSSESSION: The possession of the Property shall be delivered to Buyer
at Closing in its present "as-is" condition, ordinary wear and tear
excepted, subject to the rights of the tenant therein.
10. SALES EXPENSES TO BE PAID IN CASH AT OR PRIOR TO CLOSING: The following
items will paid as follows:
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Item Seller Buyer Split 50/50
---- ------ ----- -----------
Escrow fees ___ ___ _X_
Recording fees _X_ ___ ___
Transfer taxes ___ ___ ___
Title Policy (standard) _X_ ___ ___
Survey fees _X_ ___ ___
Doc. Prep. fees ___ ___ _X_
Phase I Report ___ _X_ ___
Excess Title Coverage ___ _X_ ___
_____________________ ___ ___ ___
_____________________ ___ ___ ___
Each party shall be solely responsible for its own attorneys' fees in
connection with this transaction; provided, however, that Buyer shall
pay any and all of Seller's reasonable attorneys' fees, if any,
attributable to the Exchange (as defined in the Addendum).
11. PRORATIONS: Rents, assessments, current taxes, utility charges and
maintenance fees and all other ordinary operating items of income and
expense relating to the Property shall be prorated at the date of
Closing with the day of Closing being for the account of the Buyer. If
ad valorem taxes for the year in which the sale is closed are not
available on the Closing Date, proration of taxes shall be made on the
basis of taxes assessed in the previous year, with a subsequent cash
adjustment of such proration to be made between Seller and Buyer, if
necessary, when actual tax figures are available.
12. TITLE APPROVAL: Within ten (10) days of the Effective Date of this
Contract, Seller shall deliver to Buyer a Commitment for Title
Insurance or Preliminary Title Report, as applicable, issued by Title
Company (the "Commitment") and, to the extent available, legible copies
of all recorded instruments noted as exceptions in the Commitment, (and
a survey of the Land and Improvements). If Buyer has an objection to
items disclosed in such Commitment or shown on the survey, Buyer shall
have until the end of the Inspection Period to make written objections
to Seller. Any items disclosed in such Commitment or shown on the
survey if not timely objected to by Buyer shall be deemed approved
("Approved Title Matters"). If Buyer makes such written objections,
Seller shall have until Closing to cure the same. Seller agrees to
utilize reasonable efforts and reasonable diligence to cure such
objections, if any, provided that Seller shall not be required to
expend more than $1,000 to do so. If the objections are not cured
within such time period, Buyer may (I) terminate this Contract upon
written notice to Seller in which event the Deposit shall be returned
to Buyer and neither party shall have any further rights or obligations
pursuant to this Contract except as otherwise provided above, or (ii)
waive the unsatisfied objections and close the transaction and the
Sales Price shall not be reduced.
13. DEFAULT: If Buyer fails to perform its obligations under this Contract,
Seller may, at its option, terminate this Contract and receive and
retain the Deposit as liquidated damages. If Seller fails to perform
its obligations under this Contract, Buyer may terminate this Contract
and the Deposit shall be returned to Buyer and Buyer shall be entitled
to recover from Seller as liquidated damages Buyer's reasonable out of
pocket costs and expenses incurred in connection with the transaction
contemplated herein up to a maximum of $5,000. Buyer and Seller
acknowledge and agree that the damages sustained by either party in the
event of default by the other party hereto would be difficult and
impractical to determine and the amounts specified above have been
agreed upon by Buyer and Seller, after negotiation, as their best
reasonable estimate as of the date of this Contract of the amount of
such damages as would be sustained by the non-defaulting party under
such circumstances. Except with respect to a willful or voluntary
default by Seller of its obligation to convey the Property to Buyer as
provided in this Contract, Buyer specifically waives any right to seek
specific performance of Seller's obligations under this Contract and
acknowledges that its only remedy shall be the right to terminate this
Agreement and (as limited by this Section 13) to seek money damages at
law.
Buyer (/s/ R.D.) and Seller (/s/ M.G.) agree to the above.
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14. ATTORNEYS' FEES: The prevailing party in any legal proceeding against
any other party hereto brought under or with relation to the Contract
or transaction shall be entitled to recover court costs and reasonable
attorneys' fees from the non-prevailing party.
15. ADDITIONAL DOCUMENTS TO BE PROVIDED BY SELLER: At the times set forth
in the attached Addendum, Seller shall deliver to Buyer copies of
certain additional documents and information relating to the Property.
16. COVENANTS OF SELLER: From the Effective Date of this Contract until the
Closing Date or earlier termination of this Contract, Seller shall: (I)
operate the Property in the customary and ordinary course of its
business and will use its reasonable efforts to reasonably preserve for
Buyer the relationships of Seller and its suppliers, tenants and others
with respect to the Property; (ii) without the prior written consent of
Buyer (which consent will not be unreasonably withheld), not enter into
any written or oral service contract or other agreement with respect to
the Property that will not be fully performed by Seller on or before
the Closing Date, or that will not be cancelable by Buyer without
liability within thirty (30) days after the Closing Date; (iii) without
the prior written consent of Buyer (which consent will not be
unreasonably withheld), not enter into, or alter, amend or otherwise
modify, or supplement any lease; (iv) advise Buyer promptly of any
litigation, arbitration, administrative hearing, or legislation before
any governmental body or agency of which Seller receives written
notice, concerning or affecting the Property which is instituted or
threatened after the date hereof; and (v) make commercially reasonable
efforts to obtain from each tenant at the Property an estoppel
certificate confirming the status and terms of such tenant's lease.
17. CONDEMNATION: If prior to Closing Date condemnation proceedings are
commenced against any material portion of the Property, Buyer may, at
its option, terminate this Contract by written notice to Seller within
ten (10) days after Buyer is advised of the commencement of
condemnation proceedings and the Deposit shall be refunded to Buyer.
Alternatively, Buyer shall have the right to appear and defend in such
condemnation proceedings, and any award in condemnation shall, at the
Buyer's election made prior to Closing, become the property of Seller
and reduce the Sales Price by the same amount or shall become the
property of Buyer and the Sales Price shall not be reduced.
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18. CASUALTY LOSS: Except as specifically provided herein, this Contract
shall remain in full force and effect notwithstanding the occurrence of
any damage or destruction of the Property prior to closing. In the
event of any damage or destruction for which the tenant under the
existing lease is not obligated under the lease to repair or restore
the Property, Buyer, at its option may either (I) terminate this
Contract upon written notice to Seller within ten (10) days after Buyer
receives Seller's Notice in which event the Deposit shall be returned
to Buyer and neither party shall have any further rights or obligations
pursuant to this Contract except as otherwise provided above, or (ii)
elect to close the transaction, in which event Seller's right to all
insurance proceeds resulting from such damage or destruction shall be
assigned in writing by Seller to Buyer and the Sales Price shall not be
reduced.
19. MISCELLANEOUS:
A. Any notice required or permitted to be delivered hereunder shall
be deemed received when personally delivered or one (1) business
day after being sent by Federal Express or other nationally
recognized overnight delivery service, charges prepaid, or three
(3) business days after being sent by United States mail, postage
prepaid, certified mail, return receipt requested, in each case
addressed to Seller or Buyer, as the case may be, at the address
set forth below the signature of such party hereto.
B. This Contract shall be construed under and in accordance with the
laws of the state in which the Property is located.
C. This Contract shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors, and assigns.
D. In case any one or more the provisions contained in the Contract
shall for any reason be held to be invalid, illegal, and
unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision hereof, and
this Contract shall be construed as if such invalid, illegal, or
unenforceable provision had never been contained herein.
E. This Contract constitutes the sole and only agreement of the
parties hereto and supersedes any prior understandings or written
or oral agreements between the parties respecting the within
subject matter and cannot be changed except by their written
consent.
F. Time is of the essence of this Contract.
G. Words of any gender used in this Contract shall be held and
construed to include any other gender, and words in the singular
number shall be held to include the plural, and vice versa,
unless the context requires otherwise.
20. ASSIGNMENT: Except (I) to an entity owned or controlled by Buyer or
(ii) the Facilitator, Buyer may not assign this Contract without the
prior written consent of Seller which Seller may grant or withhold in
its sole and absolute discretion.
21. CONSULT YOUR ATTORNEY: THIS IS INTENDED TO BE A LEGALLY BINDING
CONTRACT. READ IT CAREFULLY. NO REPRESENTATION OR RECOMMENDATION IS
MADE BY ANY BROKER OR ITS AGENTS OR EMPLOYEES AS TO THE LEGAL
SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS DOCUMENT OR THE
TRANSACTION RELATING THERETO. THESE ARE QUESTIONS FOR YOUR ATTORNEY.
CONSULT YOUR ATTORNEY BEFORE SIGNING.
EXECUTED in multiple originals as of the 3 day of December, 1996 (the "Effective
Date"). (Fill in date Seller signs.)
SELLER'S BROKER: SELLER:
- ---------------- -------
ARROYO & COATES, METRIC REAL ESTATE, L.P.,
a ________________________________ a California limited partnership
By: /s/ By: MR, Inc., a California corporation
------------------------------
Its: Senior Sales Associate Its: General Partner
------------------------------
State/License No.
By: /s/ Margot M. Giusti
--------------------------
Its: Executive Vice President
--------------------------
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BUYER'S BROKER: BUYER:
- --------------- ------
CARDINAL CAPITAL PARTNERS, INC.,
a Texas corporation
By: /s/ /s/ Richard C. Dunsay 11/25/96
----------------------------- ---------------------------------------
Its: President RICHARD C. DUNSAY
-----------------------------
State/License No. 336579
Receipt of $_________ as the Deposit
is acknowledged in the form
of_________________________________.
TITLE COMPANY:
- --------------
CHICAGO TITLE INSURANCE COMPANY
By: /s/
--------------------------------
Its: For Beth Bailey Gates
--------------------------------
National Coordinator
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ADDENDUM
TO
EARNEST MONEY CONTRACT-COMMERCIAL IMPROVEMENT PROPERTY
This Addendum To Earnest Money Contract - Commercial Improved Property (this
"Addendum") is made concurrently with and forms a part of that certain Earnest
Money Contract - Commercial Improved Property (the "Contract") executed this
date between METRIC REAL ESTATE, L.P., a California limited partnership
("Seller"), and Richard C. Dunsay, an individual ("Buyer"). In addition to and
notwithstanding anything to the contrary contained in the Contract, Seller and
Buyer further agree as follows:
1. Except as otherwise expressly provided in the Contract or this
Addendum, Seller disclaims the making of any representations or
warranties, express or implied, regarding the Property or its value,
condition of title, physical condition (including, without limitation,
pest control, hazardous substances or environmental matters),
compliance with laws (including, without limitation, the Americans With
Disabilities Act of 1990 or other laws respecting building, zoning or
land use matters) the Lease, the financial condition of Tenant or any
other matters or information with respect to the Property.
Notwithstanding the foregoing, Seller hereby represents and warrants to
Buyer that Minton J. Newell, the authorized agent of Seller, based
solely upon inquiry, by means of the Inquiry Memorandum attached hereto
as Exhibit B (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 B-1 attached hereto and incorporated herein by reference, that:
a. Seller has received any written notice from any governmental
authorities that eminent domain proceedings for the condemnation
of the Real Property are pending;
b. Seller has received any written notice of any threatened or
pending litigation against Seller relating to the Real Property;
c. Seller has received any written notice from any governmental
authority that the Improvements located on the Land are presently
in violation of any applicable building codes; and
d. Seller has received any written notice from any governmental
authority that Seller's use of the Property is presently in
violation of any applicable zoning, land use, environmental or
other law, order, ordinance, rule or regulation affecting the
Property.
2. In addition to the materials to be provided by Seller as provided in
the Contract, Buyer acknowledges that Seller has delivered to Buyer, or
shall within five (5) days hereafter (or at such other time specified
below) deliver to Buyer, a copy of each of the following items:
Items Already Delivered by Seller
a. Current Lease (and amendment thereto).
Additional Items to be Delivered by Seller
a. Notwithstanding anything in the Contract to the contrary, a
survey of the Property within three (3) business days of Seller's
receipt of the same;
b. Contracts in Seller's possession which will survive Closing, if
any;
c. Current tax statements in Seller's possession, if any;
d. Certificates of occupancy in Seller's possession, if any;
e. Permits/licenses relating to the Property in Seller's possession,
if any;
f. Plans and specifications relating to the Improvements in Seller's
possession, if any; and
g. Phase I Environmental Site Assessment.
3. Buyer acknowledges and agrees that (I) Buyer has made or has had, or
will have, an adequate opportunity to make such inquiries, inspections,
tests and evaluations of the Property (including, without limitation,
its value, condition of title, physical condition, environmental
condition and compliance with laws) as Buyer has deemed necessary or
advisable, (ii) Buyer is not relying and will not rely upon any
representations or warranties respecting the Property (other than
those, if any, specifically provided in the Contract) made by or on
behalf of Seller, (iii) Buyer is assuming and shall assume the risk
that adverse conditions relating to the Property may not have been or
may not be revealed by Buyer's investigation of the Property, and (iv)
Buyer is purchasing and shall purchase the Property in its "AS-IS"
condition and WITH ALL FAULTS on the Closing Date.
BUYER REPRESENTS TO SELLER THAT BUYER SHALL CONDUCT ALL INSPECTIONS
BUYER DEEMS NECESSARY, UNDERSTANDING THAT THE CONVEYANCE OF THE
PROPERTY SHALL BE "AS-IS", "WHERE-IS", "WITH ALL FAULTS", AND THAT
SELLER IS RELYING UPON THE FACT THAT BUYER WILL CONDUCT SUCH
INSPECTIONS (INCLUDING WITHOUT LIMITATION SOIL TESTS, ASBESTOS TESTS,
HAZARDOUS WASTE ANALYSES, AND ANY OTHER ENVIRONMENTAL INVESTIGATIONS)
AS BUYER DEEMS NECESSARY. BUYER WARRANTS THAT BUYER HAS EXPERIENCE IN
SUCH MATTERS AND THAT BUYER WILL EXERCISE DUE DILIGENCE AND GOOD FAITH
IN MAKING A FULL AND COMPLETE INSPECTION, INVESTIGATION AND REVIEW AS
AFORESAID. IT IS UNDERSTOOD THAT THE SALES PRICE REFLECTS THAT THE
PROPERTY IS BEING SOLD BY SELLER AND THAT BUYER IS ACQUIRING THE
PROPERTY "AS IS" AND "WHERE IS" AND "WITH ALL FAULTS" AND THAT SELLER
HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES,
EXPRESSED OR IMPLIED,
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WITH RESPECT TO THE QUALITY, PHYSICAL CONDITION, EXPENSES, VALUE OF THE
PROPERTY OR IMPROVEMENTS THEREON, COMPLIANCE WITH AMERICANS WITH
DISABILITIES ACT, FAIR HOUSING ACT OR OTHER LAWS REGARDING
DISCRIMINATION OR HANDICAPPED ACCESSIBILITY, PRESENCE/ABSENCE OF ANY
HAZARDOUS MATERIALS, ELECTROMAGNETIC FIELD EXPOSURE LEVELS OR ANY OTHER
MATTER OR THING AFFECTING OR RELATED TO THE PROPERTY (INCLUDING,
WITHOUT LIMITATION, WARRANTIES OF HABITABILITY OR SUITABILITY OR
WARRANTIES OF MERCHANTABILITY AND/OR OF FITNESS FOR A PARTICULAR
PURPOSE),WHICH MIGHT BE PERTINENT IN CONSIDERING THE MAKING OF THE
PURCHASE OF THE PROPERTY, AND BUYER, BY ACCEPTANCE HEREOF, DOES HEREBY
RELEASE AND FOREVER DISCHARGE SELLER AND SELLER'S SUCCESSORS AND
ASSIGNS FROM ANY AND ALL CLAIMS, OBLIGATIONS AND LIABILITIES (WHETHER
BASED IN TORT, CONTRACT OR OTHERWISE) ATTRIBUTABLE, IN WHOLE OR IN
PART, TO ANY SUCH REPRESENTATION AND/OR ALLEGED REPRESENTATION.
4. Buyer further acknowledges and agrees that except for any claims
arising out of breach of the specific provisions of the Contract,
Seller's intentional misrepresentation or fraud, Buyer expressly,
irrevocably and unconditionally waives, releases and discharges Seller,
its agents, partners, advisors, affiliates, successors and assigns,
from any and all rights, claims, damages and causes of action, whether
at law or in equity, whether or not known or unknown as of the date
hereof and/or as of the Closing Date, which Buyer may have or become
entitled to assert arising out of Buyer's purchase of the Property or
its value, condition or title, physical condition, environmental
condition, compliance with laws, or other matters respecting the
Property.
5. Buyer agrees that, unless Buyer has obtained the prior written consent
of Seller, Buyer shall not directly or indirectly release, publish or
otherwise distribute any report, prospectus, advertisement, circular or
other document which names or refers in any manner directly or
indirectly to Seller, Metric Realty or any of their respective agents,
advisors or affiliates; provided, however, that Buyer may deliver such
materials to its attorneys', consultants and other advisors to the
extent such materials are germane to Buyer's due diligence in
connection with the transaction contemplated hereby.
6. Seller agrees that Buyer may consummate the purchase of the Property as
part of a so-called like kind exchange (the "Exchange") pursuant to
Section 1031 of the Internal Revenue Code of 1986, as amended (the
"Code"), provided that: (I) the closing shall not be delayed or
affected by reason of the Exchange nor shall the consummation or
accomplishment of the Exchange be a condition precedent or condition
subsequent to Buyer's obligations under this Agreement; (ii) the
Exchange shall be consummated or accomplished through a qualified
intermediary; and (iii) Seller shall not be required to take an
assignment of the sale and purchase agreement for the exchange property
for purposes of consummating or accomplishing the Exchange. Buyer shall
pay all Seller's costs associated with such Exchange. Neither party
shall by this Agreement or acquiescence to the Exchange (1) have its
rights, duties, obligations or liabilities under this Agreement
affected or diminished in any manner, or (2) be responsible for
compliance with or be deemed to have warranted to the other party that
the Exchange in fact complies with Section 1031 of the Code.
7. Seller shall use commercially reasonable efforts to obtain (a) an
estoppel certificate and (b) subject to the provisions of the Lease, a
subordination, non-disturbance and attornment agreement ("Subordination
Agreement") from Tenant in a form reasonably satisfactory to Buyer on
or before the end of the Inspection Period provided, however, that
Seller's delivery of an estoppel certificate and/or Subordination
Agreement shall not be conditions to Buyer's obligation to close the
sale and purchase of the Property. If Seller is unable to obtain the
estoppel certificate and/or the Subordination Agreement on or before
the end of the Inspection Period, then Buyer may (I) terminate this
Contract upon written notice to Seller in which event the Deposit shall
be returned to Buyer and neither party shall have any further rights or
obligations pursuant to this Contract except as otherwise provided
above, or (ii) nonetheless, close the transaction and the Sales Price
shall not be reduced.
8. Seller agrees to use good faith efforts to cooperate with the requests
of any lender Buyer may procure, provided that such cooperation shall
be at no cost to Seller.
BUYER ( /s/ R.D.) AND SELLER (/s/ M.G.) AGREE TO THE FOREGOING.
--------- --------
7
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
TRACT I
Field notes for 31,299 square feet or 0.7185 acre of land out of Unrestricted
Reserve "D", block 4, Cypress Station, Section One, as recorded in Volume 222,
Page 61, Harris County Map Records; said 0.7185 acre tract being part of a
certain 1.3774 acre tract described in Deed dated July 7, 1986 from Joe A.
McDermott, Inc. to Southland Corporation recorded under Harris County Clerk's
File No. K620937, Official Public Records of Real Property, in the Manuel Tarin
Survey, Abstract 778, Harris County, Texas;
BEGINNING at 5/8 inch iron rod found for the point of intersection the east line
of Cypress Station Drive and the south line of F.M. 1960, said point being the
Northwest corner of the herein described tract;
THENCE: N 73 deg. 03 min. 56 sec. E, along the south line of F.M. 1960, 175.00
feet to a 5/8 inch rod found for the Northeast corner of herein described tract;
THENCE: S 8 deg. 22 min. 58 sec. E, 196.04 feet to a1/2inch iron rod set for the
Southeast corner of herein described tract;
THENCE: S 81 deg. 31 min. 27 sec. W, 180.64 feet to a 1/2 inch iron rod set in
the east line of Cypress Station Drive; said point being the Southwest corder of
the herein described tract;
THENCE: In a Northerly direction, along the east line of Cypress Station Drive,
around a curve to the right with a radius of 300.00 feet, a central angle of 3
deg. 33 min. 37 sec., an arc of 18.64 feet, and a chord bears N 4 deg. 23 min.
02 sec. E, 18.64 feet to an "X" mark in concrete found for the point of reverse
curve;
THENCE: In a Northerly direction, along the east line of Cypress Station Drive,
around a curve to the right with a radius of 300.00 feet, a central angle of 20
deg. 13 min. 17 sec., an arc of 105.88 feet, and a chord bears N 3 deg. 56 min.
48 sec. W, 105.33 feet to a 1/2 inch iron rod found for the point of tangency;
THENCE: N 14 deg. 03 min. 26 sec. W, along the east line of Cypress Station
Drive, 47.35 feet to the Place of Beginning and containing 31,299 square feet or
0.7185 acre of land;
LESS AND EXCEPT therefrom that certain 0.083 of an acre of land awarded to the
State of Texas in Corrected judgement recorded in the Office of the County Clerk
of Harris County, Texas under Clerk's File Number R009032.
TRACT II
Easement created in instrument recorded under Harris County Clerk's File
Number(s) M742886 comprising 3,243 square feet or 0.0744 acre of land out of
Unrestricted Reserve "D", block 4, Cypress Station, Section One, as recorded in
Volume 222, Page 61, Harris County Map Records; said 0.0744 acre tract being
part of a certain 1.3774 acre tract described in Deed dated July 7, 1986 from
Joe A. McDermott, Inc. To Southland Corporation recorded under Harris County
Clerk's File Number(s) K620937, Official Public Records of Real Property, in the
Manuel Tarin Survey, Abstract 778, Harris County, Texas;
COMMENCING at a 5/8 inch iron rod found for the point of intersection the east
line of Cypress Station Drive and the south line of F.M. 1960 being the
northeast corner of the above mentioned 1.3774 acre tract;
THENCE: N 73 deg. 03 min. 56 sec. E, along the south line of F.M. 1960, 175.00
feet to a 5/8 inch rod found for the Northeast corner of said 1.3774 acre tract;
THENCE: S 8 deg. 22 min. 58 sec. E, 196.04 feet to a 1/2 inch iron rod set for
corner;
THENCE: S 81 deg. 31 min. 27 sec. W, 118.02 feet to a 1/2 inch iron rod set for
the northeast corner and the Point of Beginning of the herein described tract;
THENCE: along the edge of a concrete parking lot, the following courses and
distances:
S 9 deg. 51 min. 36 sec. E, 56.96 feet to a 1/2 inch iron rod set for the
southeast corner of the herein described tract;
S 87 deg. 00 min. 11 sec. W, 69.82 feet to a 1/2 inch iron rod set in the east
line of Cypress Station Drive for the southwest corner of the herein described
tract;
THENCE: In a Northerly direction, along the east line of Cypress Station Drove,
around a curve to the right with a radius of 300.00 feet, a central angle of 5
deg. 46 min. 35 sec., an arc of 30.25 feet, and a chord bears N 4 deg. 10 min.
42 sec. W, 30.23 feet to a 1/2 inch iron rod set for the northwest corner of the
herein described tract;
THENCE: along the edge of a concrete parking lot, the following courses and
distances:
N 87 deg. 45 min. 56 sec. E, 11.29 feet to a 1/2 inch iron rod set for the point
of curvature of a curve to the left;
In a northeasterly direction, around a curve to the left with a radius of 5.50
feet, a central angle 85 deg. 25 min. 42 sec., an arc of 8.21 feet, and a chord
bears N 43 deg. 06 min. 57 sec. E, 7.47 feet to a 1/2 inch iron rod set for the
point of tangency;
N 0 deg. 25 min. 56 sec. E, 46.42 feet to a 1/2 inch iron rod set for corner;
THENCE: N 81 deg. 31 min. 27 sec. E, 46.42 feet to the Place of Beginning and
containing 3,243 square feet or 0.0744 acre of land.
<PAGE>
EXHIBIT B
Inquiry Memorandum
To: LEGAL PORTFOLIO CLIENT SERVICES
Herm Howerton, EVP, General Cynthia Halicky, VP,
Counsel Operations/Investor Services
PORTFOLIO MANAGEMENT INVESTMENT SERVICES
Ronald Zuzack, EVP, CIO James Keagy, EVP, Director
Lorenz Menrath, SVP, of Investment Services
Dir. of Portfolio Mgmnt.
Theodore Koros, Portfolio Manager
RISK MANAGEMENT cc: Scott Rogers, Esq.
George Fogelsong Richard S. Winer, Esq.
Risk Manager Property Sales Closing File
FROM: Minton Newell
DATE: November 25, 1996
SUBJECT: Internal Due Diligence
NCS Store (Stop N Go), 475 F.M. 1960 West
Harris County, Texas
Metric Real Estate, L.P.
RESPONSE MANDATORY
- --------------------------------------------------------------------------------
Pursuant to the proposed Earnest Money Contract - Commercial Improved Property
by and between METRIC REAL ESTATE, L.P., a California limited partnership
("Seller"), and RICHARD C. DUNSAY, an individual ("Buyer"), 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 signing date. If you currently have knowledge of any facts which would
make these representations untrue or incorrect, please immediately advise Tana
Laura. If you have no such knowledge, please advise accordingly. Please send
your signed copy of this statement to Tana Laura. We must have your response by
December 5, 1996.
Should you become aware of any fact which would make these representations
untrue prior to the closing date, please contact me immediately.
<PAGE>
I have no knowledge of any facts which would make the attached representations
untrue as of this date as noted below.
EXCEPTIONS:
- -----------
None
- --------------------------------------------------------------------------------
Herman H. Howerton Ronald E. Zuzack George M. Foglesong
- ---------------------- ---------------------- ----------------------
Printed Name Printed Name Printed Name
\s\ H.H. Howerton \s\ Ronald E. Zuzack \s\George M. Foglesong
- ---------------------- ---------------------- ----------------------
Signature Signature Signature
11-25-96 11-25-96 11-25-96
- ---------------------- ---------------------- ----------------------
Date Date Date
Lorenz Menrath Theodore P. Koros James S. Keagy
- ---------------------- ---------------------- ----------------------
Printed Name Printed Name Printed Name
\s\ Lorenz Menrath \s\ Theodore P. Koros \s\ James S. Keagy
- ---------------------- ---------------------- ----------------------
Signature Signature Signature
11-26-96 11-27-96 12-04-96
- ---------------------- ---------------------- ----------------------
Date Date Date
Cynthia A. Halicky
- ----------------------
Printed Name
\s\ Cynthia A. Halicky
- ----------------------
12-02-96
- ----------------------
Date
<PAGE>
EXHIBIT B-1
SCHEDULE OF EXCEPTIONS
TO
REPRESENTATIONS AND WARRANTIES
[to be attached]
<PAGE>
Form of Special Warranty Deed
Form of Special Warranty Deed, executed and delivered as of December 11, 1996,
signed by Margot M. Giusti, Executive Vice President, and recorded December 19,
1996 as Instrument Number S250842, not filed with this Amendment. Metric Income
Trust Series, Inc. agrees to provide the Securities and Exchange Commission
copies of said Special Warranty Deed upon request.
Form of Deed Restriction Notice
Form of Deed Restriction Notice, dated December 11, 1996, and signed by Margot
M. Giusti, Executive Vice President, as Seller, and by Richard C. Dunsay, as
Purchaser, not filed with this Amendment. Metric Income Trust Series, Inc.
agrees to provide the Securities and Exchange Commission copies of said Deed
Restriction Notice upon request.
Form of Bill of Sale
Form of Bill of Sale, executed December 19, 1996, and signed by Margot M.
Giusti, Executive Vice President, as Seller, and by Richard C. Dunsay, as
Purchaser, not filed with this Amendment. Metric Income Trust Series, Inc.
agrees to provide the Securities and Exchange Commission copies of said Bill of
Sale upon request.
Form of Assignment of Lease
Form of Assignment of Lease, dated December 19, 1996, and signed by Margot M.
Giusti, Executive Vice President, as Assignor, and by Richard C. Dunsay, as
Assignee, not filed with this Amendment. Metric Income Trust Series, Inc. agrees
to provide the Securities and Exchange Commission copies of said Assignment of
Lease upon request.
Form of FIRPTA Certificate
Form of FIRPTA Certificate, signed by Margot M. Giusti, Executive Vice
President, on December 11, 1996, not filed with this Amendment. Metric Income
Trust Series, Inc. agrees to provide the Securities and Exchange Commission
copies of said FIRPTA Certificate upon request.
<PAGE>
Seller's Escrow Instructions
Seller's Escrow Instructions, in the form of a letter dated December 13, 1996
from Richard S. Winer of Landels, Ripley & Diamond, Attorneys, LLP, representing
the registrant, to Beth Bailey-Gates, of Chicago Title Company, not filed with
this Amendment. Metric Income Trust Series, Inc. agrees to provide the
Securities and Exchange Commission copies of said Seller's Escrow Instructions
upon request.
Form of Assignment and Amendment to Escrow Instructions
Assignment and Amendment to Escrow Instructions Substitution of Buyer (Direct
Deed), dated December 9, 1996, and signed by Ronald Zuzack, Executive Vice
President of Metric Realty, not filed with this Amendment. Metric Income Trust
Series, Inc. agrees to provide the Securities and Exchange Commission copies of
said Assignment and Amendment to Escrow Instructions Substitution of Buyer
(Direct Deed) upon request.
Form of Seller's Final Closing Statement
Form of Seller's Final Closing Statement not filed with this Amendment. Metric
Income Trust Series, Inc. agrees to provide the Securities and Exchange
Commission copies of said Seller's Final Closing Statement upon request.
Form of Tenant Notice
Tenant Notice, in the form of a letter to the tenant dated December 19, 1996,
signed by Richard C. Dunsay, as the New Owner, and by Margot M. Giusti,
Executive Vice President, as the Former Owner, not filed with this Amendment.
Metric Income Trust Series, Inc. agrees to provide the Securities and Exchange
Commission copies of said Tenant Notice upon request.
Form of Affidavit
Form of Affidavit executed December 17, 1996 by Seller regarding Tenancies not
filed with this Amendment. Metric Income Trust Series, Inc. agrees to provide
the Securities and Exchange Commission copies of said Affidavit upon request.
13
<PAGE>
Form of Letter
Letter from Seller to Buyer, dated December 11, 1996, and signed by Margot M.
Giusti, Executive Vice President, regarding deed restrictions and CC&Rs, not
filed with this Amendment. Metric Income Trust Series, Inc. agrees to provide
the Securities and Exchange Commission copies of said Letter upon request.
Form of Notification of Authority to Impose Property Taxes and Standby Fees
Notification of Authority to Impose Property Taxes and Standby Fees dated
December 3, 1996, executed by Buyer and Seller, not filed with this Amendment.
Metric Income Trust Series, Inc. agrees to provide the Securities and Exchange
Commission copies of said Notification of Authority to Impose Property Taxes and
Standby Fees upon request.G12
