FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
July 24, 1997
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Date of Report
(Date of earliest event reported)
Metric Income Trust Series, Inc.
--------------------------------
(Exact name of registrant as
specified in its charter)
0-18294 California 94-3087630
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(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
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
(a) The Registrant was organized to acquire, hold for investment, manage, and
ultimately sell income-producing real properties and investments in
securities. In the normal course of its business, the registrant sold the
Arlington (Green Oaks Boulevard), Texas Stop N Go on July 24, 1997.
TERMS OF ORIGINAL ACQUISITION
On November 30, 1989 the Registrant acquired Stop N Go store #2378 in Arlington,
Texas for $1,462,000 including acquisition fees and other miscellaneous closing
costs.
TERMS OF DISPOSITION AND FINANCING
The Registrant sold the Arlington (Green Oaks Boulevard), Texas Stop N Go on
July 24, 1997. The net sales price was $1,413,000. After payment of expenses of
sale, the proceeds to the Registrant were $1,303,000.
CARRYING AMOUNT AT DATE OF SALE
At the date of sale, the carrying amount of the land and improvements
approximated $1,408,000 (including $73,000 deferred lease income receivable) and
$1,353,000 on a book basis and tax basis, respectively.
LOSS ON SALE
The loss recognized on the sale approximated $105,000 and $50,000 on a book
basis and tax basis, respectively.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Exhibits.
1. Earnest Money Contract for Stop N Go store located in Arlington (Green
Oaks Boulevard), Texas dated June 5, 1997
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
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: November 10, 1997
------------------------
EXHIBIT 1
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 HAROLD D. CHAFFEE, TRUSTEE OF THE
HAROLD AND LUCILLE CHAFFEE TRUST u/a dated OCTOBER 12, 1992 ("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 2501 Green Oaks Boulevard, City of
Arlington, County of Tarrant, State of Texas and more particularly
described as set forth on Exhibit A attached hereto and incorporated herein
by this reference ("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) $1,412,705.00
B. Amount of Third Party Financing (see Paragraph 4) $0.00
C. Total Sales Price (Sum of A and B) $1,412,705.00
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 N/A 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 N/A ("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 $25,000.00 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, 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 the date which is the 15th day following
the last day of the Inspection Period ("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 ("Special
Warranty Deed") in substantially the form of Exhibit C attached
hereto and made a part hereof, 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 in substantially the form of Exhibit D attached
hereto and made a part hereof, 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 ("Bill of Sale");
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(3) An Assignment of Lease in substantially the form of Exhibit E
attached hereto and made a part hereof, with respect to the Lease
(as defined below) duly executed by Seller;
(4) Evidence of its capacity and authority for the Closing of this
transaction;
(5) Original (or a copy certified as being a true and correct copy to
the best knowledge of Minton J. Newell, Seller's authorized
agent, 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");
(6) Certification of Seller's non-foreign status;
(7) A tenant notice letter advising Tenant of the transfer of the
Property and the disposition of its security deposit ("Tenant
Notice");
(8) A Tenant Estoppel Certificate substantially in the form of
Exhibit F attached hereto and made a part hereof, fully completed
and executed by the Tenant under the Lease (the "Tenant Estoppel
Certificate");
(9) Certificates of Insurance naming Buyer as an additional insured
under Tenant's liability and casualty insurance policies; and
(10) All other necessary documents to close this transaction as may be
reasonably requested by Title Company.
B. At the Closing, Buyer shall pay the total Sale Price and shall execute
and deliver to escrow the following:
(1) Bill of Sale in the form provided to Buyer by Seller;
(2) An Assignment of Lease in the form provided to Buyer by Seller;
(3) A Tenant Notice in the form provided to Buyer by Seller;
(4) Evidence of its capacity and authority for the Closing of this
transaction; and
(5) 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 TLTA 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,
an examination of a copy of the Lease and a copy of the Tenant Estoppel
Certificate executed by Tenant and a physical inspection of all
improvements, fixtures, mechanical equipment, and personal property being
sold hereby (collectively, "Inspections"). Buyer shall have through 5 p.m.
on that date which is the 30th day following the Effective Date of this
Contract ("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 (i) the sum of $50 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. Subject to the provisions of Paragraph 12
hereof with respect to title and survey matters, 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 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: DAMON RAIKE & COMPANY, as broker ("Seller's Broker") who is
appropriately licensed as a real estate broker as required by law has
negotiated the transaction contemplated in this Contract. Upon Closing,
Seller agrees to pay Seller's Broker a cash 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 in this Paragraph 8.
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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__ _____ _____
Title Policy (TLTA standard) __X__ _____ _____
Survey fees __X__ _____ _____
Phase I Report __X__ _____ _____
Excess Title Coverage _____ __X__ _____
Additional Environmental Reports _____ __X__ _____
Except as otherwise specifically set forth in this Contract, each party
shall bear the costs attendant to providing each and every document to be
provided by such party in connection with this transaction. 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 (within three (3) days of Seller's receipt of
the same). If Buyer has an objection to items disclosed in such Commitment
or shown on the survey, Buyer shall have until the latter to occur of (i)
10 days following receipt of the title and survey materials described in
the preceding sentence or (ii) 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. 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 $3,000 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, as its exclusive remedy, 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 incurred in connection with the
transaction contemplated herein $7,850.00. 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 in this Contract 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.
Buyer (/s/ HDC) and Seller (/s/ HHH) 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; and (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.
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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:
If the Buyer:
Harold D. Chaffee
8816 Natalie Avenue, N.E.
Albuquerque, NM 87111
With a copy to:
Thomas D. Fritz, Esq.
Ford & Ferraro, L.L.P.
2000 San Jacinto Center
98 San Jacinto Boulevard
Austin, TX 78701-4286
If the Seller:
Metric Real Estate, L.P.
c/o SSR Realty Advisors
One California St., Suite 1400
San Francisco, CA 94111-5415
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, including the Exhibits hereto, 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.
H. This Contract may be executed in any number of counterparts, each of
which, when executed and delivered, shall be an original, but all
counterparts shall together constitute one and the same instrument.
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20. ASSIGNMENT: Buyer may assign this Contract to a qualified 1031 tax exchange
intermediary. Notwithstanding any such 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 5TH day of JUNE, 1997 (the "Effective
Date"). (Fill in date Seller signs.)
SELLER'S BROKER: SELLER:
- ---------------- -------
DAMON RAIKE & COMPANY METRIC REAL ESTATE, L.P.,
a California limited partnership
By: /s/
------------------------------
Its: Broker By: MR, Inc., a California corporation,
------------------------------ General Partner
State/License No. 00360391
----------------- By: /s/ Herman H. Howerton
-------------------------------
Its: VICE PRESIDENT
Receipt of $25,000 as the deposit ------------------------------
is acknowledged in the form of
no. 1044 .
- ---------------------------------- BUYER:
------
TITLE COMPANY: /s/ Harold D. Chaffee
- -------------- ----------------------------------------
HAROLD D. CHAFFEE, Trustee of the Harold
CHICAGO TITLE INSURANCE COMPANY and Lucille Chaffee Trust, u/a dated
October 12, 1992
By: /s/ for Beth Bailey Gates
------------------------------
Its: Coordinator
------------------------------
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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 HAROLD D. CHAFFEE, TRUSTEE OF THE HAROLD AND LUCILLE CHAFFEE
TRUST u/a dated October 12, 1992 ("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;
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;
e. The Lease is not in full force and effect;
f. Seller, as landlord, is in default of any of its obligations under the
terms of the Lease; or
g. Tenant is delinquent in the payment of rent under the Lease.
2. Seller represents and warrants to Buyer as follows:
a. Seller has fee simple title to the Property, subject only to the exceptions
to title shown in the Commitment delivered to Buyer;
b. Seller is a California limited partnership duly and validly formed and in
good standing in the State of California;
c. Seller has the partnership power and authority to enter into this
Agreement; and
d. To the best of Seller's knowledge, no personal property constitutes any
part of the Property contemplated to be sold pursuant to this Agreement.
3. 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 23, 1996 prepared by Chicago
Title Insurance Company;
c. Phase I Environmental Site Assessment and Limited Asbestos Survey dated
January 20, 1997 prepared by Law Engineering; and
Additional Items to be Delivered by Seller
a. A current ALTA survey of the Property within three (3) business days of
Seller's receipt of the same;
b. A supplemental title report bringing the above-referenced Commitment
up-to-date; and
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c. A schedule showing the dates that the monthly rent payments under the Lease
were actually received by Seller from January 1996 forward certified by
Seller.
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.
e. The executed Tenant Estoppel Certificate described in paragraph 6. A. (8)
of the Earnest Money Contract, within twenty-one days of the Effective Date
hereof.
4. 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, 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.
5. 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.
6. 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.
7. 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.
7
<PAGE>
BUYER AND SELLER AGREE TO THE FOREGOING.
SELLER:
METRIC REAL ESTATE, L.P.,
a California limited partnership
By: MR, Inc., a California corporation,
General Partner
By: /s/ Herman H. Howerton
------------------------------------
Its: VICE PRESIDENT
------------------------------------
BUYER:
/s/ Harold D. Chaffee
----------------------------------------
HAROLD D. CHAFFEE, Trustee of the Harold
and Lucille Chaffee Trust, u/a dated
October 12, 1992
8
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
Being all of Lot 1, Block 1, Greenwood Addition to the City of Arlington as
shown on plat recorded in Volume 388-209, Page 50 of the Plat Records of Tarrant
County, Texas, and being more particularly described by metes and bounds as
follows:
BEGINNING at an iron rod in the North right-of-way line of Green Oaks Boulevard
Southeast and a corner clip of the West right-of-way line of State Highway No.
360;
THENCE in a Southwesterly direction with the North R.O.W. line of Green Oaks
Boulevard Southeast, being a curve to the left having a central angle of 07 deg.
16 min. 32 sec., a radius of 1,060.00 feet and a chord distance of 134.51 feet
which bears South 72 deg. 51 min. 25 sec. West, a distance along the arc of
134.60 feet to an "X" cut in concrete;
THENCE North 20 deg. 46 min. 51 sec. West, 89.40 feet to an iron rod at the
beginning of a non-tangent curve to the left;
THENCE with a said curve having a central angle of 37 deg. 21 min. 18 sec., a
radius of 170.00 feet and a chord distance of 108.88 feet which bears North 18
deg. 58 min. 39 sec. East, a distance along the arc of 110.83 feet to an iron
rod;
THENCE North 00 deg. 18 min. 00 sec. East, 24.65 feet to an iron rod;
THENCE South 89 deg. 42 min. 00 sec. East, 215.04 feet to an iron rod in the
West right-of-way line of State Highway 360, being a non- tangent curve to the
left;
THENCE with said right-of-way line and curve having a central angle of 00 deg.
29 min. 50 sec., a radius of 5,759.58 feet, and a chord distance of 50.00 feet
which bears South 02 deg. 41 min. 52 sec. East, a distance along the arc of
50.00 feet to an iron rod;
THENCE South 41 deg. 03 min. 11 sec. West, 142.66 feet with said West
right-of-way line to an iron rod;
THENCE South 04 deg. 32 min. 11 sec. East, 12.93 feet with said West
right-of-way line to the POINT OF BEGINNING and containing 0.824 acres (35,901
square feet) of land,
Together with a Private Access Easement created in Volume 8983, Page 159 and as
set forth on the plat recorded in Volume 388-209, Page 50 Plat Records of
Tarrant County, Texas and a non-exclusive parking easement set forth in
instrument recorded in Volume 9061, Page 1145, Tarrant County Records, Tarrant
County, Texas, as affected by Volume 12212, Page 613, Deed Records of Tarrant
County Texas.
<PAGE>
EXHIBIT B
Inquiry Memorandum
To: PORTFOLIO ACCOUNTING LEGAL
-------------------- ------
Chui-San Lok, Assistant Controller Herman H. Howerton, Managing
Director, General Counsel
PORTFOLIO MANAGEMENT RISK MANAGEMENT
-------------------- ---------------
Rich Faber, Portfolio Manager George Fogelsong, Risk Manager
Craig Fawcett, Assistant Portfolio Manager
PORTFOLIO CLIENT SERVICES cc: Scott Rogers, Esq.
------------------------- Richard S. Winer, Esq.
Cynthia Halicky, Director of Operations Property Sales Closing File
FROM: Minton Newell
DATE: June 3, 1997
SUBJECT: Internal Due Diligence
NCS Store
San Antonio, 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 HAROLD D. CHAFFEE, TRUSTEE OF THE HAROLD AND LUCILLE CHAFFEE
TRUST, u/a dated October 12, 1992 ("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
June 5, 1997.
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 Richard Faber George M. Foglesong
- ---------------------- ---------------------- ----------------------
Printed Name Printed Name Printed Name
\s\ H.H. Howerton \s\ Richard Faber \s\George M. Foglesong
- ---------------------- ---------------------- ----------------------
Signature Signature Signature
06-05-97 06-05-97 06-04-97
- ---------------------- ---------------------- ----------------------
Date Date Date
Cynthia Halicky Craig Fawcett Chui-San Lok
- ---------------------- ---------------------- ----------------------
Printed Name Printed Name Printed Name
\s\ Cynthia Halicky \s\ Craig Fawcett \s\ Chui-San Lok
- ---------------------- ---------------------- ----------------------
Signature Signature Signature
06/04/97 06-04-97 06-03-97
- ---------------------- ---------------------- ----------------------
Date Date Date
<PAGE>
WHEN RECORDED, RETURN TO:
Filed 7-25-97- Tarrant Co.
Harold D. Chaffee #D197134069
8816 Natalie Avenue, N.E. By: /s/
Albuquerque, NM 87111 ---------------------
- --------------------------------------------------------
SPECIAL WARRANTY DEED
STATE OF TEXAS
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF TARRANT
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 HAROLD D. CHAFFEE,
Trustee of the Harold and Lucille Chaffee Trust u/a dated October 12, 1992
(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
Tarrant 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.
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, AND 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.
<PAGE>
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 22nd day of July,1997.
METRIC REAL ESTATE, L.P.,
a California limited partnership
By: MR, Inc., a California corporation,
General Partner
By: /s/ Herman H. Howerton
----------------------
Its: Vice President
----------------------
THE STATE OF
COUNTY OF
This instrument was acknowledged before me on the 22nd day of July,
1997, by Herman H. Howerton, the Vice President of MR, Inc., a California
corporation, on behalf of said Metric Real Estate, L.P., a California limited
partnership.
(Seal) /s/ Deborah Russo
------------------------
Notary Public
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
Being all of Lot 1, Block 1, Greenwood Addition to the City of Arlington as
shown on plat recorded in Volume 388-209, Page 50 of the Plat Records of Tarrant
County, Texas, and being more particularly described by metes and bounds as
follows:
BEGINNING at an iron rod in the North right-of-way line of Green Oaks Boulevard
Southeast and a corner clip of the West right-of-way line of State Highway No.
360;
THENCE in a Southwesterly direction with the North R.O.W. line of Green Oaks
Boulevard Southeast, being a curve to the left having a central angle of 07 deg.
16 min. 32 sec., a radius of 1,060.00 feet and a chord distance of 134.51 feet
which bears South 72 deg. 51 min. 25 sec. West, a distance along the arc of
134.60 feet to an "X" cut in concrete;
THENCE North 20 deg. 46 min. 51 sec. West, 89.40 feet to an iron rod at the
beginning of a non-tangent curve to the left;
THENCE with a said curve having a central angle of 37 deg. 21 min. 18 sec., a
radius of 170.00 feet and a chord distance of 108.88 feet which bears North 18
deg. 58 min. 39 sec. East, a distance along the arc of 110.83 feet to an iron
rod;
THENCE North 00 deg. 18 min. 00 sec. East, 24.65 feet to an iron rod;
THENCE South 89 deg. 42 min. 00 sec. East, 215.04 feet to an iron rod in the
West right-of-way line of State Highway 360, being a non-tangent curve to the
left;
THENCE with said right-of-way line and curve having a central angle of 00 deg.
29 min. 50 sec., a radius of 5,759.58 feet, and a chord distance of 50.00 feet
which bears South 02 deg. 41 min. 52 sec. East, a distance along the arc of
50.00 feet to an iron rod;
THENCE South 41 deg. 03 min. 11 sec. West, 142.66 feet with said West
right-of-way line to an iron rod;
THENCE South 04 deg. 32 min. 11 sec. East, 12.93 feet with said West
right-of-way line to the POINT OF BEGINNING and containing 0.824 acres (35,901
square feet) of land,
Together with a Private Access Easement created in Volume 8983, Page 159 and as
set forth on the plat recorded in Volume 388-209, Page 50 Plat Records of
Tarrant County, Texas and a non-exclusive parking easement set forth in
instrument recorded in Volume 9061, Page 1145, Tarrant County Records, Tarrant
County, Texas, as affected by Volume 12212, Page 613, Deed Records of Tarrant
County Texas.
<PAGE>
BILL OF SALE
STATE OF TEXAS
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF TARRANT
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 HAROLD D. CHAFFEE, Trustee of the Harold and Lucille Chaffee Trust
u/a dated October 12, 1992 ("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) 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 24th day of July, 1997.
<PAGE>
SELLER: METRIC REAL ESTATE, L.P., a
California limited partnership
By: MR, Inc., a California corporation,
General Partner
By: /s/ Herman H. Howerton
---------------------------------
Its: Vice President
---------------------------------
PURCHASER: /s/ Harold D. Chaffee
------------------------------------
HAROLD D. CHAFFEE, Trustee of
the Harold and Lucille Chaffee Trust
u/a dated October 12, 1992
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
Being all of Lot 1, Block 1, Greenwood Addition to the City of Arlington as
shown on plat recorded in Volume 388-209, Page 50 of the Plat Records of Tarrant
County, Texas, and being more particularly described by metes and bounds as
follows:
BEGINNING at an iron rod in the North right-of-way line of Green Oaks Boulevard
Southeast and a corner clip of the West right-of-way line of State Highway No.
360;
THENCE in a Southwesterly direction with the North R.O.W. line of Green Oaks
Boulevard Southeast, being a curve to the left having a central angle of 07 deg.
16 min. 32 sec., a radius of 1,060.00 feet and a chord distance of 134.51 feet
which bears South 72 deg. 51 min. 25 sec. West, a distance along the arc of
134.60 feet to an "X" cut in concrete;
THENCE North 20 deg. 46 min. 51 sec. West, 89.40 feet to an iron rod at the
beginning of a non-tangent curve to the left;
THENCE with a said curve having a central angle of 37 deg. 21 min. 18 sec., a
radius of 170.00 feet and a chord distance of 108.88 feet which bears North 18
deg. 58 min. 39 sec. East, a distance along the arc of 110.83 feet to an iron
rod;
THENCE North 00 deg. 18 min. 00 sec. East, 24.65 feet to an iron rod;
THENCE South 89 deg. 42 min. 00 sec. East, 215.04 feet to an iron rod in the
West right-of-way line of State Highway 360, being a non- tangent curve to the
left;
THENCE with said right-of-way line and curve having a central angle of 00 deg.
29 min. 50 sec., a radius of 5,759.58 feet, and a chord distance of 50.00 feet
which bears South 02 deg. 41 min. 52 sec. East, a distance along the arc of
50.00 feet to an iron rod;
THENCE South 41 deg. 03 min. 11 sec. West, 142.66 feet with said West
right-of-way line to an iron rod;
THENCE South 04 deg. 32 min. 11 sec. East, 12.93 feet with said West
right-of-way line to the POINT OF BEGINNING and containing 0.824 acres (35,901
square feet) of land,
Together with a Private Access Easement created in Volume 8983, Page 159 and as
set forth on the plat recorded in Volume 388-209, Page 50 Plat Records of
Tarrant County, Texas and a non-exclusive parking easement set forth in
instrument recorded in Volume 9061, Page 1145, Tarrant County Records, Tarrant
County, Texas, as affected by Volume 12212, Page 613, Deed Records of Tarrant
County Texas.
<PAGE>
ASSIGNMENT OF LEASE
STATE OF TEXAS )
)
COUNTY OF TARRANT )
THIS ASSIGNMENT OF LEASE (this "Assignment"), dated as of the 24th
day of July, 1997, is by and between METRIC REAL ESTATE, L.P., a California
limited partnership ("Assignor") and HAROLD D. CHAFFEE, TRUSTEE OF THE HAROLD
AND LUCILLE CHAFFEE TRUST u/a dated OCTOBER 12, 1992 (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"), as amended by Lease Amendment dated October 14, 1992
(collectively, the "Lease").
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 discharge
any and all obligations of the lessor or landlord under the Lease arising from
and after the effective date hereof and to indemnify, save and hold harmless
Assignor from and against any and all liability, claims or causes of action in
favor of or asserted by the lessee or tenant under the Lease arising out of or
relating to Assignee's failure to perform any of the obligations of the lessor
or landlord under the Lease arising from and after the effective date hereof.
Assignor covenants and agrees to discharge any and all obligations
of the lessor or landlord under the Lease arising prior to the effective date
hereof and to indemnify, save and hold harmless Assignee from and against any
and all liability, claims or causes of action existing in favor of or asserted
by the lessee or tenant under the Lease arising out of or relating to Assignor's
failure to perform any of the obligations of the lessor or landlord under the
Lease arising prior to the effective date hereof.
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.
<PAGE>
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/ Herman H. Howerton
--------------------------
Its: Vice President
--------------------------
"ASSIGNEE"
/s/ Harold D. Chaffee
------------------------------
HAROLD D. CHAFFEE, Trustee of the Harold
and Lucille Chaffee Trust, u/a dated
October 12, 1992
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
Being all of Lot 1, Block 1, Greenwood Addition to the City of Arlington as
shown on plat recorded in Volume 388-209, Page 50 of the Plat Records of Tarrant
County, Texas, and being more particularly described by metes and bounds as
follows:
BEGINNING at an iron rod in the North right-of-way line of Green Oaks Boulevard
Southeast and a corner clip of the West right-of-way line of State Highway No.
360;
THENCE in a Southwesterly direction with the North R.O.W. line of Green Oaks
Boulevard Southeast, being a curve to the left having a central angle of 07 deg.
16 min. 32 sec., a radius of 1,060.00 feet and a chord distance of 134.51 feet
which bears South 72 deg. 51 min. 25 sec. West, a distance along the arc of
134.60 feet to an "X" cut in concrete;
THENCE North 20 deg. 46 min. 51 sec. West, 89.40 feet to an iron rod at the
beginning of a non-tangent curve to the left;
THENCE with a said curve having a central angle of 37 deg. 21 min. 18 sec., a
radius of 170.00 feet and a chord distance of 108.88 feet which bears North 18
deg. 58 min. 39 sec. East, a distance along the arc of 110.83 feet to an iron
rod;
THENCE North 00 deg. 18 min. 00 sec. East, 24.65 feet to an iron rod;
THENCE South 89 deg. 42 min. 00 sec. East, 215.04 feet to an iron rod in the
West right-of-way line of State Highway 360, being a non- tangent curve to the
left;
THENCE with said right-of-way line and curve having a central angle of 00 deg.
29 min. 50 sec., a radius of 5,759.58 feet, and a chord distance of 50.00 feet
which bears South 02 deg. 41 min. 52 sec. East, a distance along the arc of
50.00 feet to an iron rod;
THENCE South 41 deg. 03 min. 11 sec. West, 142.66 feet with said West
right-of-way line to an iron rod;
THENCE South 04 deg. 32 min. 11 sec. East, 12.93 feet with said West
right-of-way line to the POINT OF BEGINNING and containing 0.824 acres (35,901
square feet) of land,
Together with a Private Access Easement created in Volume 8983, Page 159 and as
set forth on the plat recorded in Volume 388-209, Page 50 Plat Records of
Tarrant County, Texas and a non-exclusive parking easement set forth in
instrument recorded in Volume 9061, Page 1145, Tarrant County Records, Tarrant
County, Texas, as affected by Volume 12212, Page 613, Deed Records of Tarrant
County Texas.
<PAGE>
FIRPTA CERTIFICATE
To inform HAROLD D. CHAFFEE, Trustee of the Harold and Lucille
Chaffee Trust u/a dated October 12, 1992 ("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: July 24, 1997
METRIC REAL ESTATE, L.P., a
California limited partnership
By: MR, Inc., a California corporation,
General Partner
By: /s/ Herman H. Howerton
--------------------------------
Its: Vice President
--------------------------------
<PAGE>
Form of Letter RE: Right of First Refusal
Letter dated July 7, 1997 from Landels Ripley & Diamond, attorneys for Metric
Real Estate, L.P. to Rosewood Properties, Inc., whereby Rosewood was offered and
chose not to exercise the Right of First Refusal, not included with this filing.
Metric Income Trust Series, Inc. agrees to provide the Securities and Exchange
Commission copies of said letter upon request.
Form of Release of Right of First Refusal
Release of Right of First Refusal, signed by B. Dennis King, Senior Vice
President of Rosewood Property Company, and notarized by Texas Notary Alice
Ashley on July 14, 1997, not included with this filing. Metric Income Trust
Series, Inc. agrees to provide the Securities and Exchange Commission copies of
said Release of Right of First Refusal upon request.
Form of Letter
Letter dated July 16, 1997 executed by Rosewood Property Company acknowledging
receipt of payment for the releasee of the Right of First Refusal not included
with this filing. Metric Income Trust Series, Inc. agrees to provide the
Securities and Exchange Commission copies of said letter upon request.
Form of Seller's Escrow Instructions
Seller's escrow instructions, dated July 22, 1997, not included with this
filing. 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 Final Closing Statement
Seller's final closing statement, dated July 24, 1997, not included with this
filing. 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 Survey
Land survey dated July 17, 1997 not included with this filing. Metric Income
Trust Series, Inc. agrees to provide the Securities and Exchange Commission
copies of said land survey upon request.
Form of Tenant Notice
Tenant Notice, executed by New and Former Owners, dated July 18, 1997, not
included with this filing. 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, executed by the Manager of Real Estate for National
Convenience Stores, Inc., not included with this filing. Metric Income Trust
Series, Inc. agrees to provide the Securities and Exchange Commission copies of
said Tenant Estoppel Certificate upon request.
