FORM 8-K/A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CURRENT REPORT
AMENDMENT NO. 1
TO FORM 8-K FILED APRIL 11, 1997
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
March 28, 1997
-----------------------
Date of Report
(Date of earliest event reported)
Metric Income Trust Series, Inc.
--------------------------------
(Exact name of registrant as
specified in its charter)
0-18294 California 94-3087630
------- ---------- ----------
(Registration (State or Other (IRS Employer
File Jurisdiction of Identification
Number) Incorporation) Number)
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 Watts line for all states
<PAGE>
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION
AND EXHIBITS
(a) Exhibit
Earnest Money Contract for Stop N Go store located in Texas City, Texas
dated March 13, 1997.
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/ William A. Finelli
------------------------------
William A. Finelli
Chief Financial Officer
Date: April 18, 1997
--------------
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 JAMES M. HARRIS and BARBARA S.
HARRIS, husband and wife ("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: A parcel of land located at 2430 25th @ Loop 197, City of
Texas City, County of Galveston, 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) $135,000.00
B. Amount of Third Party Financing
(see Paragraph 4) $0.00
C. Total Sales Price (Sum of A and B) $135,000.00
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 3A above at an interest rate and upon
terms reasonably acceptable to Buyer. Buyer shall apply for the loan
within three (3) days from the Effective Date of this Contract and use
reasonable efforts to obtain loan approval. This loan approval
contingency shall be satisfied or waived in writing by Buyer on or
before March 14, 1997 ("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 $5,000.00 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,
Buyer shall tender an additional sum of $5,000.00, increasing the
Deposit to $10,000.00, which 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 March 20, 1997 ("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:
/s/ BH JH
<PAGE>
(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
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, 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 by Lease
Amendment dated October 14, 1992 (collectively, 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");
(7) An Assignment of Lease in the form provided by Seller
to Buyer ("Lease Assignment"); and
(8) All other necessary documents to close this
transaction as may be reasonably requested by Title
Company.
B. At the Closing, Buyer shall deliver to escrow, at Buyer's sole
cost and expense, the following:
(1) The total Sales Price;
(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, in the form provided to
Buyer by Seller duly executed by Buyer;
(3) A tenant notice letter advising Tenant of the
transfer of the Property and the deposition of its
security deposit ("Tenant Notice");
(4) An Assignment of Lease in the form provided by Seller
to Buyer duly executed by Buyer ("Lease Assignment");
(5) Evidence of its capacity and authority for the
Closing of this transaction; and
(6) 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, non-delinquent
real property taxes and assessments, Approved Title Matters
and such other matters as Buyer may approve in writing.
7. FEASIBILITY STUDY AND INSPECTION: Buyer is granted the right to conduct
an engineering, and/or market and economic feasibility study 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 March 14, 1997 ("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 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 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 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
/s/ BH JH
<PAGE>
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 MARCUS
& MILLICHAP, 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 $4,050.00, which Title Company shall pay from the sales proceeds
upon Closing. Seller agrees to pay Seller's Broker a cash fee of
$4,050.00 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:
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
--- --- ---
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 any 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. 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,
together with 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 thirty (30) days from the date of such
written objections to cure the same. If required, the Closing Date
shall be extended to allow such cure period. 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 $2,000. 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. Specific performance is waived by both parties
hereto.
/s/ BH JH
<PAGE>
Buyer (____) and Seller (/s/ MG) agree to the above.
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 substantially in the form of Exhibit C attached hereto and
made a part hereof, 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.
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, Seller shall promptly provide Buyer with written notice
of whether or not Seller, in its sole and absolute discretion, elects
to cause such damage or destruction to be repaired prior to closing
("Seller's Notice"). If Seller so elects to repair such damage or
destruction, the closing shall be delayed for such reasonable period as
may be required to allow Seller to complete such repairs at which time
the transaction will close and the Sales Price shall not be reduced. If
Seller elects not to repair such damage or destruction, 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.
/s/ BH JH
<PAGE>
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: Buyer may assign this Contract to Equity
Preservation, Inc., a qualified 1031 tax exchange
intermediary. Notwithstanding any such contemplated
assignment, Buyer shall remain obligated for all of Buyer's
payment and performance obligations hereunder.
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 13th day of March, 1997 (the "Effective
Date"). (Fill in date Seller signs.)
SELLER'S BROKER: SELLER:
- --------------- ------
ARROYO & COATES METRIC REAL ESTATE, L.P.,
By: /s/ a California limited partnership
-------------------------------
Its: Senior Sales Associate By: MR, Inc., a California corporation,
------------------------------- General Partner
State/License No. 00995512
------------------
By: /s/ Margot M. Giusti
BUYER'S BROKER: --------------------------------
- -------------- Its: Margot M. Giusti
--------------------------------
MARCUS & MILLICHAP Executive Vice President
BUYER:
By: /s/ /s/ James M. Harris
-------------------------------- -----------------------------------
Its: Agent JAMES M. HARRIS
--------------------------------
State/License No. 00530854 /s/ Barbara S. Harris
----------------- -----------------------------------
BARBARA S. HARRIS
Receipt of $5,000 as the deposit
is acknowledged in the form of
___________________________________.
CONTRACT RECEIVED BY:
TITLE COMPANY:
- -------------
CHICAGO TITLE INSURANCE COMPANY
By: /s/ EM Bailey-Gates
--------------------------------
Its: Sr. Escrow Officer
--------------------------------
<PAGE>
ADDENDUM
TO
EARNEST MONEY CONTRACT-COMMERCIAL IMPROVED 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 JAMES M. HARRIS and BARBARA S. HARRIS, husband and wife
("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 by virtue
of their positions with the advisor are likely to have relevant knowledge about
the Property and 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 which would materially and adversely effect
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. NCS Store Lease dated November 30, 1989, as amended by lease amendment
dated October 14, 1992;
b. Commitment for title insurance dated August 22, 1996 prepared by
Chicago Title Insurance Company;
c. Phase I Environmental Site Assessment and Limited Asbestos Survey dated
October 25, 1996 prepared by Law Engineering; and
d. Assignment and Assumption of Purchase and Sale Agreement dated December
15, 1989 between Metric Income Trust Services, Inc. and Metric Real
Estate L.P.
Additional Items to be Delivered by Seller
a. A survey of the Property within three (3) business days of Seller's
receipt of the same;
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.
/s/ JH BH
<PAGE>
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, 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, 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.
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. If, as a
result of any requirement of such Exchange, Seller incurs any cost,
then Buyer shall pay any and all of such Seller costs. 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.
BUYER (/s/ BH JH) AND SELLER (/s/ MG) AGREE TO THE FOREGOING.
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
Field notes for 9,850 square feet or 0.2261 of an acre of land, being a part of
Lot 80, Texas City Heights as recorded in Volume 136, Page 2 of the Galveston
County Clerk's Records and located in the Robert Logan Survey, Galveston County,
Texas:
BEGINNING at a 1/2 inch iron rod set for the intersection of the East line of
Logan Avenue (also known as 25th Street, 60 feet wide) and the North line of
25th Avenue (also known as Loop 197, 60 feet wide), being the Southwest corner
of the herein described tract;
THENCE North, along the Ease line of Logan Avenue, 100.00 feet to an "X" set in
concrete for the Northwest corner of the herein described tract;
THENCE East, 98.5 feet to a 1/2 inch iron rod set for the Northeast corner of
the herein described tract;
THENCE South 100.00 feet to a 1/2 inch iron rod set in the North line of 25th
Avenue for the Southeast corner of the herein described tract;
THENCE West, along the North line of 25th Avenue, 98.5 feet to the POINT OF
BEGINNING and containing 9,850 square feet or 0.2261 of an acre of land.
<PAGE>
EXHIBIT B
Inquiry Memorandum
To: LEGAL PORTFOLIO CLIENT SERVICES
----- -------------------------
Herm Howerton, EVP, Cynthia Halicky, VP, Operations/
General Counsel Investor Services
PORTFOLIO MANAGEMENT PORTFOLIO ACCOUNTING
-------------------- --------------------
Ronald Zuzack, EVP, CIO Chui-San Lok, Asst. Controller -
Lorenz Menrath, SVP, Portfolio
Dir. of Portfolio Mgmnt.
Richard Faber, Portfolio Manager cc: Richard S. Winer, Esq.
Craig Fawcett, Asst. Property Sales Closing File
Portfolio Manager
RISK MANAGEMENT
George Fogelsong,
Risk Manager
FROM: Minton Newell
DATE: March 13, 1997
SUBJECT: Internal Due Diligence
NCS Store (Stop N Go)
2430 - 25th Avenue North
Texas City, 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 JAMES M. HARRIS AND BARBARA S. HARRIS, husband and wife,
("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
immediately, as the contract is scheduled to be executed today.
<PAGE>
Should you become aware of any fact which would make these representations
untrue prior to the closing date, please contact me immediately.
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
03-13-97 03-20-97 03-13-97
- ---------------------- -------------------- ----------------------
Date Date Date
Lorenz Menrath Richard Faber Chui-San Lok
- ---------------------- -------------------- ----------------------
Printed Name Printed Name Printed Name
\s\ Lorenz Menrath \s\ Richard Faber \s\ Chui-San Lok
- ---------------------- -------------------- ----------------------
Signature Signature Signature
03-19-97 03-13-97 03-14-97
- ---------------------- -------------------- ----------------------
Date Date Date
Cynthia A. Halicky Craig Fawcett
- ---------------------- --------------------
Printed Name Printed Name
\s\ Cynthia A. Halicky \s\ Craig Fawcett
- ---------------------- --------------------
03-13-97 03-13-97
- ---------------------- --------------------
Date Date
<PAGE>
EXHIBIT B-1
SCHEDULE OF EXCEPTIONS
TO
REPRESENTATIONS AND WARRANTIES
[to be attached]
<PAGE>
WHEN RECORDED, RETURN TO: Recorded 3/31/97
Series 9711546
James M. & Barbara S. Harris
15140 Pepper Lane
Saratoga, California 95070
- --------------------------------------------------------------------------------
SPECIAL WARRANTY DEED
STATE OF TEXAS
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF GALVESTON
THAT METRIC REAL ESTATE, L.P. a California limited partnership (herein
called "Grantor"), for and in consideration of TEN AND NO/100 DOLLARS ($10.00)
and other good and valuable cash consideration to Grantor in hand paid and
caused to be paid in the manner hereinafter stated by JAMES M. HARRIS and
BARBARA S. HARRIS, husband and wife, whose mailing address is 15140 Pepper Lane,
Saratoga, California 95070 (herein called "Grantee", whether one or more), the
receipt and sufficiency of which are hereby acknowledged, has GRANTED, SOLD and
CONVEYED and by these presents does hereby GRANT, SELL and CONVEY unto Grantee
the real property in Galveston County, Texas, together with all rights and
appurtenances thereto (the "Property"), to wit:
See Exhibit A attached hereto and incorporated herein by this reference
This conveyance is made subject to any and all restrictions, covenants,
conditions, easements and reservations, if any, relating to the hereinabove
described Property, but only to the extent they are still in effect, shown of
record in the hereinabove mentioned county and state and to all zoning laws,
regulations, and ordinances of municipal and/or governmental authorities, if
any, but only to the extent that they are still in effect relating to the
hereinabove described real property.
TO HAVE AND TO HOLD the Property, together with all and singular the
rights and appurtenances thereto in anywise belonging unto Grantee, Grantee's
heirs, personal representatives, successors and assigns forever; and Grantor
does hereby bind Grantor and Grantor's successors, to warrant and forever defend
all and singular the Property, subject, however, as aforesaid, unto Grantee,
Grantee's heirs, personal representatives, successors and assigns, against every
person whomsoever lawfully claiming, or to claim the same, or any part thereof,
by, through, or under Grantor, but not otherwise.
<PAGE>
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IT IS EXPRESSLY
UNDERSTOOD AND AGREED THAT GRANTEE IS ACQUIRING THE PROPERTY "AS IS" AND "WHERE
IS" AND "WITH ALL FAULTS" AND THAT, EXCEPT AS TO THE SPECIAL WARRANTY OF TITLE
SET FORTH ABOVE, GRANTOR HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS OR
WARRANTIES, EXPRESSED OR IMPLIED, 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 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, AS GRANTEE, BY ACCEPTANCE HEREOF, DOES
HEREBY RELEASE AND FOREVER DISCHARGE GRANTOR AND GRANTOR'S SUCCESSORS 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
REPRESENTATIONS AND/OR ALLEGED REPRESENTATIONS.
As a portion of the other consideration for the conveyance herein made,
Grantee shall execute and deliver to Merchants Bank, a state banking association
("Noteholder"), that certain Promissory Note ("Note") dated as of March 27, 1997
in the principal amount of ONE HUNDRED AND NO/100 DOLLARS ($100,000.00), and the
payment of the Note shall be secured by the vendor's lien and superior title
herein reserved and by that certain Deed of Trust ("Deed of Trust") dated as of
March 27, 1997 from Grantee to Charles R. Herbeck, as Trustee, for the benefit
of Grantor, covering the Property.
Grantor hereby expressly reserves and retains for Noteholder, and
Noteholder's successors and assigns, the vendor's lien, as well as the superior
title, in and to the Property to secure (i) the payment of the Note, and (ii)
the performance and payment by Grantee of all covenants, conditions, obligations
and liabilities under the Deed of Trust. Contemporaneously with the execution of
this Special Warranty Deed, the vendor's lien and superior title in and to the
Property retained herein are hereby TRANSFERRED AND ASSIGNED to Noteholder and
Noteholder's successors and assigns and Grantor shall have no further obligation
in connection therewith. Upon the full and complete payment of the Note and
satisfaction and performance of all covenants, conditions, obligations and
liabilities under the Deed of Trust, then this conveyance shall become absolute
and the vendor's lien and superior title herein reserved shall be automatically
released and discharged.
Grantee, by acceptance hereof, does hereby assume and agree to pay all
ad valorem taxes pertaining to the Property for the calendar year 1997 and
subsequent years, there having been a proper proration of same between Grantor
and Grantee.
EXECUTED and DELIVERED as of the 27 day of March, 1997.
<PAGE>
METRIC REAL ESTATE, L.P., a
California limited partnership
By: MR, Inc., a California corporation,
General Partner
By: /s/ Margot M. Giusti
-----------------------------
Its: Executive Vice President
----------------------------
<PAGE>
ACKNOWLEDGMENT
THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
This instrument was acknowledged before me, Tana J. Laura, Notary
Public for the State of California, on the 27th day of March, 1997, by Margot M.
Giusti, the Executive Vice President of MR, Inc., the general partner, on behalf
of Metric Real Estate, L.P., a California limited partnership.
Signature /s/ Tana J. Laura (Seal)
-----------------------------
Tana J. Laura, Notary Public
Commission Expires January 15, 2001
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
Field notes for 9,850 square feet or 0.2261 of an acre of land, being a part of
Lot 80, Texas City Heights as recorded in Volume 136, Page 2 of the Galveston
County Clerk's Records and located in the Robert Logan Survey, Galveston County,
Texas:
BEGINNING at a 1/2 inch iron rod set for the intersection of the East line of
Logan Avenue (also known as 25th Street, 60 feet wide) and the North line of
25th Avenue (also known as Loop 197, 60 feet wide), being the Southwest corner
of the herein described tract;
THENCE North, along the Ease line of Logan Avenue, 100.00 feet to an "X" set in
concrete for the Northwest corner of the herein described tract;
THENCE East, 98.5 feet to a 1/2 inch iron rod set for the Northeast corner of
the herein described tract;
THENCE South 100.00 feet to a 1/2 inch iron rod set in the North line of 25th
Avenue for the Southeast corner of the herein described tract;
THENCE West, along the North line of 25th Avenue, 98.5 feet to the POINT OF
BEGINNING and containing 9,850 square feet or 0.2261 of an acre of land.
<PAGE>
BILL OF SALE
STATE OF TEXAS
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF GALVESTON
By a Special Warranty Deed (the "Deed") dated on or about the date
hereof METRIC REAL ESTATE, L.P., a California limited partnership ("Seller")
conveyed to JAMES M. HARRIS and BARBARA S. HARRIS, husband and wife
("Purchaser"), certain real property (the "Property"), described on Exhibit "A"
attached hereto and made a part hereof for all purposes.
As consideration for (a) the conveyance of the Property, and (b) the
conveyance of the personal property hereinafter described, the Purchaser paid
the sum of TEN AND NO/100 DOLLARS ($10.00) and other good and valuable
consideration to the Seller.
NOW, THEREFORE, for the consideration above specified, the receipt and
sufficiency of which are expressly confessed and acknowledged:
1. The Seller has GRANTED, SOLD and CONVEYED, and by these presents
does hereby GRANT, SELL and CONVEY unto the Purchaser, all of Seller's right,
title, and interest in and to (i) all items of personal property located in or
about the Property (hereafter the "Personal Property"), (ii) all intangible
property named by Seller and used in connection with the ownership, operation
and maintenance of the Property, and (iii) all warranties and guaranties
relating to the Property or Personal Property; to have and to hold, all of
Seller's right, title, and interest in and to the Personal Property and other
rights and property conveyed hereby unto the Purchaser forever, and Seller does
hereby bind Seller and Seller's heirs, personal representatives, and successors,
to warrant and forever defend all and singular the Personal Property and other
rights and property conveyed hereby, subject, however, as aforesaid, unto
Purchaser, Purchaser's heirs, personal representative, successors and assigns,
against every person whomsoever lawfully claiming, or to claim the same, or any
part thereof.
2. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IT IS EXPRESSLY
UNDERSTOOD AND AGREED THAT PURCHASER IS ACQUIRING THE PERSONAL 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, WITH RESPECT TO
THE QUALITY, PHYSICAL CONDITION, EXPENSES, VALUE OF THE PERSONAL PROPERTY OR ANY
OTHER MATTER OR THING AFFECTING OR RELATED TO THE PERSONAL PROPERTY (INCLUDING,
WITHOUT LIMITATION, WARRANTIES OF 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 PERSONAL PROPERTY, AND PURCHASER,
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)
<PAGE>
ATTRIBUTABLE, IN WHOLE OR IN PART, TO ANY SUCH REPRESENTATION AND/OR ALLEGED
REPRESENTATION.
3. This Bill of Sale is made subject to all matters to which the Deed was
made subject.
4. This Bill of Sale constitutes the entire agreement between the Seller
and the Purchaser pertaining to the Personal Property and other
properties or rights assigned herein and supersedes all prior and
contemporaneous agreements and understandings of the Seller and the
Purchaser in connection therewith. No covenant, representation or
condition not expressed herein shall be binding upon the Seller or the
Purchaser or shall affect or be effective to interpret, change or
restrict the provisions of this Bill of Sale.
5. This Bill of Sale and the provisions herein contained shall be binding
upon and inure to the benefit of the Purchaser and the Seller and their
respective heirs, legal representatives, successors and assigns.
6. This Bill of Sale may be executed in multiple counterparts, each of
which shall be deemed an original, but together shall be construed as
one document.
EXECUTED as of the 28 day of March, 1997.
SELLER: METRIC REAL ESTATE, L.P., a
California limited partnership
By: MR, Inc., a California corporation,
General Partner
By: /s/ Margot M. Giusti
---------------------------
Its: Margot M. Giusti
---------------------------
Executive Vice President
PURCHASER: /s/ James M. Harris
---------------------------
JAMES M. HARRIS
/s/ Barbara S. Harris
---------------------------
BARBARA S. HARRIS
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
Field notes for 9,850 square feet or 0.2261 of an acre of land, being a part of
Lot 80, Texas City Heights as recorded in Volume 136, Page 2 of the Galveston
County Clerk's Records and located in the Robert Logan Survey, Galveston County,
Texas:
BEGINNING at a 1/2 inch iron rod set for the intersection of the East line of
Logan Avenue (also known as 25th Street, 60 feet wide) and the North line of
25th Avenue (also known as Loop 197, 60 feet wide), being the Southwest corner
of the herein described tract;
THENCE North, along the Ease line of Logan Avenue, 100.00 feet to an "X" set in
concrete for the Northwest corner of the herein described tract;
THENCE East, 98.5 feet to a 1/2 inch iron rod set for the Northeast corner of
the herein described tract;
THENCE South 100.00 feet to a 1/2 inch iron rod set in the North line of 25th
Avenue for the Southeast corner of the herein described tract;
THENCE West, along the North line of 25th Avenue, 98.5 feet to the POINT OF
BEGINNING and containing 9,850 square feet or 0.2261 of an acre of land.
<PAGE>
ASSIGNMENT OF LEASE
STATE OF TEXAS )
)
COUNTY OF GALVESTON )
THIS ASSIGNMENT OF LEASE (this "Assignment"), dated as of the 28 day of
March, 1997, is by and between METRIC REAL ESTATE, L.P., a California limited
partnership ("Assignor") and JAMES M. HARRIS and BARBARA S. HARRIS, husband and
wife (hereinafter referred to as "Assignee").
WITNESSETH:
WHEREAS, Assignor has by Special Warranty Deed (the "Deed") conveyed
that certain real property described in Exhibit "A" attached hereto to Assignee
(such real property being hereinafter referred to as the "Premises").
WHEREAS, Assignor or Assignor's predecessor in interest, as lessor, has
heretofore entered into that certain lease dated November 30, 1989 by and
between Metric Income Trust Series, Inc., a California corporation d/b/a MITS
Inc., in Texas ("MITS") and National Convenience Stores Incorporated, a Delaware
corporation ("Lessee").
WHEREAS, Assignor desires to assign to Assignee all of Assignor's
right, title and interest in and to the Lease (and all security and other
deposits for such Leases, if any, in Assignor's possession).
NOW, THEREFORE, for and in consideration of the sum of TEN AND NO/100
DOLLARS ($10.00) cash and other goods and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, Assignor does hereby ASSIGN,
TRANSFER, SET OVER and DELIVER unto Assignee, its successors and assigns, all of
the Assignor's right, title and interest in and to the Lease (and said security
and other deposits, if any, in Assignor's possession).
The Assignment made hereinabove is subject to the liens, encumbrances,
conditions and matters to which the Deed is made subject.
By its acceptance hereof, Assignee hereby assumes and agrees to perform
all of the terms, covenants and conditions of the Lease herein assigned on the
part of the Assignor therein required to be performed, after the date hereof and
during the period of Assignee's ownership of the Premises, including without
limitation, the obligation to repay, in accordance with the terms of the Lease,
to the Lessee, all security and other deposits, if any, received hereunder and
required by the terms thereof.
By its acceptance hereof, Assignee covenants and agrees to promptly
discharge any and all obligations of the Assignor under the Lease herein
<PAGE>
assigned to the extent the same arise after the date hereof and during the
period of Assignee's ownership of the Premises.
All of the covenants, terms and conditions set forth herein shall be
binding upon and inure to the benefit of the parties hereto, and their
respective successors and assigns.
This Assignment may be executed in multiple counterparts, each of which
shall be deemed an original, but together shall be construed as one document.
"ASSIGNOR"
METRIC REAL ESTATE, L.P. a California limited
partnership
By: MR, Inc., a California corporation,
General Partner
By: /s/ Margot M. Giusti
-------------------------------
Its: Margot M. Giusti
-------------------------------
Executive Vice President
"ASSIGNEE"
/s/ James M. Harris
-------------------------------
JAMES M. HARRIS
/s/ Barbara S. Harris
-------------------------------
BARBARA S. HARRIS
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
Field notes for 9,850 square feet or 0.2261 of an acre of land, being a part of
Lot 80, Texas City Heights as recorded in Volume 136, Page 2 of the Galveston
County Clerk's Records and located in the Robert Logan Survey, Galveston County,
Texas:
BEGINNING at a 1/2 inch iron rod set for the intersection of the East line of
Logan Avenue (also known as 25th Street, 60 feet wide) and the North line of
25th Avenue (also known as Loop 197, 60 feet wide), being the Southwest corner
of the herein described tract;
THENCE North, along the Ease line of Logan Avenue, 100.00 feet to an "X" set in
concrete for the Northwest corner of the herein described tract;
THENCE East, 98.5 feet to a 1/2 inch iron rod set for the Northeast corner of
the herein described tract;
THENCE South 100.00 feet to a 1/2 inch iron rod set in the North line of 25th
Avenue for the Southeast corner of the herein described tract;
THENCE West, along the North line of 25th Avenue, 98.5 feet to the POINT OF
BEGINNING and containing 9,850 square feet or 0.2261 of an acre of land.
<PAGE>
FIRPTA CERTIFICATE
To inform JAMES M. HARRIS and BARBARA S. HARRIS, husband and wife
("Transferee"), that withholding of tax under Section 1445 of the Internal
Revenue Code of 1986, as amended (the "Code"), will not be required upon
transfer of certain real property to Transferee by METRIC REAL ESTATE, L.P., a
California limited partnership ("Transferror"), the undersigned hereby certifies
the following on behalf of Transferror:
1. Transferror 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. Transferror's U.S. employer identification/social security number is
94-3113449.
3. Transferror's office address is as follows:
c/o Metric Realty
1 California Street, Suite 1400
San Francisco, California 94111
Transferror 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.
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
Transferror.
Date: 3/28, 1997
METRIC REAL ESTATE, L.P., a
California limited partnership
By: MR, Inc., a California corporation,
General Partner
By: /s/ Margot M. Giusti
------------------------
Its: Margot M. Giusti
------------------------
Executive Vice President
<PAGE>
Form of Survey
Land survey dated March 10, 1997 not included with this Amendment. Metric Income
Trust Series, Inc. agrees to provide the Securities and Exchange Commission
copies of said survey upon request.
Form of Seller's Escrow Instructions
Seller's Escrow Instructions, dated March 21, 1997, not included 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 Seller's Amended Escrow Instructions
Seller's Amended Escrow Instructions, dated March 27, 1997, not included with
this Amendment. Metric Income Trust Series, Inc. agrees to provide the
Securities and Exchange Commission copies of said Seller's Amended Escrow
Instructions upon request.
Form of Seller's Final Closing Statement
Seller's Final Closing Statement, dated March 28, 1997, not included 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, executed by Buyer and Seller, dated March 28, 1997, not included
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 Tenant Estoppel Certificate
Tenant Estoppel Certificate, dated March 5, 1997, not included with this
Amendment. Metric Income Trust Series, Inc. agrees to provide the Securities and
Exchange Commission copies of said Tenant Estoppel Certificate upon request.
