FORM 8-K/A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CURRENT REPORT
AMENDMENT NO. 1
TO FORM 8-K FILED November 3, 1997
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
October 21, 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 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS.
Exhibit a) Agreement for Purchase and Sale of Real Property by and Between
Metric Real Estate, L.P. as seller, and Fifty-Eight Acres, Inc. as
buyer, dated September 2, 1997.
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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: March 11, 1998
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AGREEMENT FOR PURCHASE AND SALE
OF
REAL PROPERTY
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY is made and
entered into as of September 2, 1997 by and between METRIC REAL ESTATE, L.P., a
California limited partnership ("Seller"), and FIFTY-EIGHT ACRES, INC., a
California corporation ("Buyer").
ARTICLE 1
BASIC DEFINITIONS
Section 1.1 Closing Date. The term "Closing Date" shall mean the date
upon which the escrow described in Article V closes, which date shall be no
later than the date specified in Section 5.5 hereof.
Section 1.2 Contract Period. The term "Contract Period" shall mean the
period from the date of this Agreement through and including the Closing Date.
Section 1.3 Inspection Period. The term "Inspection Period" shall mean
the period following the date of this Agreement, ending at 5 p.m. on September
15, 1997.
Section 1.4 Intangible Property. The term "Intangible Property" shall
mean Seller's rights and interests in the following: (i) the Lease, (ii) any
service contracts pertaining to the Real Property, (iii) any governmental
licenses, permits and approvals held by Seller relating to the occupancy or use
of the Real Property, and (iv) any existing warranties held by Seller and given
by third parties with respect to the Real Property.
Section 1.5 Lease. The term "Lease" shall mean that certain lease dated
June 22, 1993 between Seller's predecessor-in-interest, Rosewood Real Estate
Investments, Inc., as landlord, and Haverty Furniture Companies, Inc., as
tenant, and any amendments thereto.
Section 1.6 Personal Property. The term "Personal Property" shall mean
Seller's interest, if any, in all furniture, fixtures, machinery, appliances,
equipment and other personal property located on the Real Property and utilized
in connection with the ownership and operation of the Real Property by Seller,
but specifically excluding any and all personal computers, software, facsimile
machines and copy machines located on the Real Property or utilized in
connection therewith.
Section 1.7 Title Report. The term "Title Report" shall mean the
commitment for title insurance with respect to the Real Property with an
effective date of June 10, 1997, issued by Title Company under its Commitment
No. 44-903-80-1008014, a copy of which is attached to this Agreement as Exhibit
A.
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Section 1.8 Property. The term "Property" shall mean the Real Property,
as more particularly described in Exhibit B attached to this Agreement, the
Personal Property and the Intangible Property.
Section 1.9 Real Property. The term "Real Property" shall mean that
certain real property (including, without limitation, any and all improvements)
commonly known as Haverty's Furniture Store, with a mailing address of 601
Accent Drive, Plano, Texas 75075. The land component of the Real Property is
described with precision in the Title Report.
Section 1.10 Title Company. The term "Title Company" shall mean Chicago
Title Insurance Company whose address for this transaction is as follows:
Chicago Title Insurance Company
388 Market Street, Suite 1300
San Francisco, CA 94111
Attn: Beth Bailey-Gates, Escrow Officer
Escrow No. 110002
Fax No. (415) 956-2175
Phone No. (415) 788-0871
ARTICLE 2
PURCHASE AND SALE
Section 2.1 Purchase and Sale. Seller agrees to sell the Property to
Buyer, and Buyer agrees to purchase the Property from Seller upon all of the
terms, covenants and conditions set forth in this Agreement.
Section 2.2 Purchase Price. The purchase price for the Property (the
"Purchase Price") shall be the sum of Four Million Four Hundred Twenty-Five
Thousand Dollars ($4,425,000) payable as follows:
(a) Payment of the Deposit; and
(b) The balance of the Purchase Price shall be paid in cash through the
escrow established pursuant to Section 5.1 on the Closing Date.
Section 2.3 Buyer's Review and Seller's Disclaimer.
(a) On or before the date of this Agreement, Seller has furnished to
Buyer pursuant to that certain Letter of Intent dated July 29, 1997 (the "Letter
of Intent") copies of each of the documents to be delivered by Seller as
provided in the Letter of Intent and Seller shall furnish to Buyer copies of
each of the documents described on Exhibit C hereto pertaining to the Property
to the extent not previously delivered pursuant to the Letter of Intent. By
placing its initials in the space provided below, Buyer acknowledges its receipt
of each of the documents to be delivered by Seller pursuant to the Letter of
Intent and Exhibit C.
Buyer's Initials: /s/
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Buyer shall have until 5:00 p.m. on September 15, 1997, to approve in
writing all of such documents. Any such documents not expressly disapproved by
Buyer in writing on or before 5:00 p.m. on September 15, 1997, shall be deemed
approved.
Any exceptions to the Title Report, the survey, if any, or other
documents and information pertaining to exceptions to title not expressly
disapproved by Buyer in writing on or before 5:00 p.m. on September 15, 1997,
shall be deemed approved and shall be referred to as the "Exceptions." Within
five (5) days after any notice from Title Company identifying the need to amend
or add any exception to the Title Report, Buyer shall notify Seller of any
objections Buyer may have to said amendment or addition, failure to disapprove
such amendment or addition shall be deemed to be approval. Within five (5) days
after any written notice from Buyer identifying any exceptions to title
disapproved by Buyer, Seller shall inform Buyer whether to not it shall use
reasonable efforts to remove as matters affecting title any disapproved
exceptions prior to the Closing Date, but Seller shall not be required to
institute any litigation or incur any cost in excess of $10,000 to do so. If,
prior to the Closing Date, Seller notifies Buyer that Seller will not be able to
remove any of the disapproved exceptions, then, within five (5) days after the
giving of such notice by Seller, or prior to the Closing Date, whichever is
earlier, Buyer shall give Seller and Title Company written notice, either that
Buyer (i) waives its prior disapproval of the disapproved exceptions and accepts
such title as Seller is willing to convey, or (ii) terminates this Agreement.
(b) Prior to expiration of the Inspection Period, Buyer shall have the
right, at its sole cost and expense, to conduct whatever inspections, studies,
tests and investigations Buyer desires to conduct relating to the Property
including, without limitation, the physical, environmental, economic and legal
condition of the Property (the "Inspections"). Buyer shall indemnify and defend
Seller against and hold Seller harmless from any and all loss, cost, claim,
liability and expense (including reasonable attorneys fees) to the extent
arising out of Buyer's activities on the Real Property during the Inspection
Period. Prior to expiration of the Inspection Period, Buyer shall complete the
Inspections and subject to its sole discretion, notify Seller in writing of its
approval or disapproval of the Property. Failure to timely disapprove the
Property in writing shall be deemed to be approval by Buyer and constitute
Buyer's waiver of the condition set forth in Section 3.1(a)(i) below.
(c) Buyer hereby agrees that the waiver or satisfaction of the
conditions set forth in Section 3.1(a)(i) below shall constitute an
acknowledgment that Buyer (a) has concluded whatever studies, tests, and
investigations Buyer desired to conduct relating to the Property including,
without limitation, economic reviews and analyses, soils tests, engineering
analyses, environmental analyses and analysis of any applicable records of the
planning, building, public works or any other governmental or quasi-governmental
entity having or asserting jurisdiction over the Property; (b) has reviewed and
read (or has elected not to do so) and has understood all instruments affecting
the Property and/or its value which Buyer deems relevant, including, without
limiting the generality of the foregoing, all documents referred to in the Title
Report and all leases, operating statements, demographic studies and market
analyses; (c) and its consultants have made all such independent studies,
analyses and investigations, as Buyer has deemed necessary, including, without
limitation, those relating to environmental matters and the leasing, occupancy
and income of the Property; (d) is relying solely on its own investigations as
to the Property and its value and is assuming the risk that adverse physical,
economic or other conditions (including, without limitation, adverse
environmental conditions (including, without limitation, soils and groundwater
conditions) and status of compliance with the requirements of the Americans With
Disabilities Act of 1990) may not have been revealed by such investigation; and
(e) that Seller has given Buyer every opportunity to consider, inspect and
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review to its satisfaction the physical, environmental, economic and legal
condition of the Property and all files and information in Seller's possession
which Buyer deems material to the purchase of the Property.
(d) Except as otherwise expressly provided in Section 4.1 below, Seller
disclaims the making of any representations or warranties, express or implied,
regarding the Property or its value or matters affecting the Property,
including, without limitation, the physical condition of the Property, title to
or the boundaries of the Real Property, pest control matters, soil condition,
hazardous waste, toxic substance or other environmental matters, compliance with
the Americans With Disabilities Act of 1990 or other building, health, safety,
land use and zoning laws, regulations and orders, structural and other
engineering characteristics, traffic patterns and all other information
pertaining to the Property. Buyer, moreover, acknowledges (i) that Seller did
not develop or construct the Real Property, (ii) that Buyer has entered into
this Agreement with the intention of making and relying upon its own
investigation of the physical, environmental, economic and legal condition of
the Property and (iii) that Buyer is not relying upon any representations and
warranties, other than those specifically set forth in Section 4.1 below, made
by Seller or anyone acting or claiming to act on Seller's behalf concerning the
Property or its value. Buyer further acknowledges that it has not received from
Seller any accounting, tax, legal, architectural, engineering, property
management or other advice with respect to this transaction and is relying
solely upon the advice of its own accounting, tax, legal, architectural,
engineering, property management and other advisors. Buyer agrees that the
Property is to be sold to and accepted by Buyer in its "AS IS" condition and
WITH ALL FAULTS on the Closing Date and assumes the risk that adverse physical,
environmental, economic or legal conditions may not have been revealed by its
investigation.
(e) Except with respect to any claims arising out of any breach of
covenants, representations or warranties set forth in Sections 4.1 or 4.2 below,
Buyer, for itself and its agents, affiliates, successors and assigns, hereby
releases and forever discharges Seller, its agents, partners, affiliates,
successors and assigns from any and all rights, claims and demands at law or in
equity, whether known or unknown at the time of this agreement, which Buyer has
or may have in the future, arising out of the physical, environmental, economic
or legal condition of the Property. Buyer hereby specifically acknowledges that
Buyer has carefully reviewed this subsection and discussed its import with legal
counsel and that the provisions of this subsection are a material part of this
Agreement.
Buyer's Initials: /s/
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Section 2.4 Environmental Report. As part of its inspection of the
Property, Buyer shall have the right to obtain whatever environmental reports
that Buyer desires with respect to the Real Property, the expense of which shall
be paid by Buyer. Buyer shall have until the end of the Inspection Period to
approve or disapprove any such environmental reports; and if Buyer disapproves
any such environmental reports, then this Agreement shall be terminated by Buyer
prior to the end of the Inspection Period in accordance with Section 3.2 hereof.
Buyer agrees to provide to Seller copies of any environmental reports with
respect to the Real Property that are obtained by Buyer.
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ARTICLE 3
CONDITIONS PRECEDENT
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Section 3.1 Conditions.
(a) Notwithstanding anything in this Agreement to the contrary, Buyer's
obligation to purchase the Property shall be subject to and contingent upon the
satisfaction or waiver by Buyer of the following conditions precedent:
(i) Buyer's inspection and approval, within the Inspection
Period, of all physical, environmental, economic and legal matters
relating to the Property, pursuant to Sections 2.3 and 2.4 above.
(ii) The willingness of Title Company or some other reputable
title insurer to issue its standard Texas owner's form policy of title
insurance (Form T-1) ("Buyer's Title Policy"), insuring Buyer in the
amount of the Purchase Price that title to the Real Property is vested
of record in Buyer as of the Closing Date, subject only to the printed
conditions and exceptions of such policy and the Exceptions.
(iii) Buyer's receipt of a satisfactory loan commitment prior
to the end of the Inspection Period.
(iv) Buyer's receipt of (i) a satisfactory tenant estoppel
certificate from the Tenant in the form attached hereto as Exhibit L
prior to the Closing Date ("Tenant Estoppel"); provided, however, that
Buyer shall accept an estoppel certificate in lieu of that attached as
Exhibit L provided that such certificate shall be in the form of an
estoppel which Tenant is entitled to deliver under the terms of the
Lease, and (ii) subject to the terms and conditions of the Lease, a
subordination and attornment agreement from the Tenant in a form
reasonably acceptable to Buyer's lender;
(v) Seller's performance or tender of performance of all
material obligations under this Agreement and subject to Section 4.4
hereof, the material truth and accuracy of Seller's express
representations and warranties as of the Closing Date;
(b) Notwithstanding anything in this Agreement to the contrary, Seller's
obligation to sell the Property shall be subject to and contingent upon the
satisfaction or waiver by Seller of the following conditions precedent:
(i) The willingness of Title Company to issue the Buyer's
Title Policy.
(ii) Buyer's timely satisfaction or waiver of the condition
set forth in Section 3.1(a)(i) and (iii) above.
(iii) On or before August 25, 1997, Seller shall have received
from Buyer's lender a letter or a loan commitment, in either case
satisfactory to Seller, that affirmatively confirms the availability of
a loan, acceptable to Buyer, the proceeds of which are to be used in
connection with the acquisition of the Property.
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Section 3.2 Failure or Waiver of Conditions Precedent. In the event any
of the conditions set forth in Section 3.1 are not fulfilled or waived by the
party intended to be benefited thereby, this Agreement shall terminate. Either
party may, at its election, at any time or times on or before the date specified
for the satisfaction of the condition, waive in writing the benefit of any of
the conditions set forth in Section 3.1(a) and 3.1(b) above. Buyer's failure to
notify Seller in writing of the failure of any of the conditions set forth in
Section 3.1(a) on or before the date specified for satisfaction shall constitute
a waiver of such condition. In any event, Buyer's consent to the close of escrow
pursuant to this Agreement shall waive any remaining unfulfilled conditions.
ARTICLE 4
COVENANTS, WARRANTIES AND REPRESENTATIONS
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Section 4.1 Seller's Warranties and Representations. Seller hereby
represents and warrants to Buyer as follows:
(a) This Agreement has been approved by the Investment Advisory
Committee of Seller's general partner. Seller has full power and lawful
authority to enter into and carry out the terms and provisions of this Agreement
and to execute and deliver all documents which are contemplated by this
Agreement and all actions of Seller and of its general partner necessary to
confer such power and authority upon the persons executing this Agreement and
all documents which are contemplated by this Agreement on behalf of Seller have
been taken;
(b) Minton J. Newell, the authorized agent of Seller, based solely upon
inquiry, by means of the Inquiry Memorandum attached to this Agreement as
Exhibit D (the "Inquiry Memorandum"), of the individuals listed thereon (which
individuals are the individuals most likely to have knowledge regarding the
Property), 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 D-1 attached hereto and
incorporated herein by reference, that:
(i) Seller has received any written notice from any
governmental authorities that eminent domain proceedings for the
condemnation of the Real Property are pending;
(ii) Seller has received any written notice of any threatened
or pending litigation against Seller which would materially and
adversely affect the Real Property;
(iii) Seller has received any written notice from any
governmental authority that the improvements located on the Real
Property are presently in violation of any applicable building codes;
(iv) Seller has received any written notice from any
governmental authority that Seller's use of the Real Property is
presently in violation of any applicable zoning, land use or other law,
order, ordinance, rule or regulation affecting the Real Property; or
(v) To the best of Seller's knowledge, there are no written
agreements of which Seller is a party that will affect the Property
after the Closing Date.
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(c) To the best of Seller's knowledge, the Lease is in full force and
effect, without an Event of Default (as defined in the Lease); and
(d) To the best of Seller's knowledge, there is no personal property.
Section 4.2 Seller's Covenants. Seller hereby covenants and agrees
that:
(a) During the Contract Period, Seller will not enter into any service
contracts binding upon Buyer other than in the ordinary course of business and
on terms consistent with then current market conditions without Buyer's prior
approval, which approval shall not be unreasonably withheld and shall be deemed
given if Buyer should fail to approve or disapprove any proposed contract in
writing within five (5) working days following Seller's request for such action.
(b) Following expiration of the Inspection Period, Seller will not
enter into any leases for any portion of the Real Property without Buyer's prior
approval, which approval shall not be unreasonably withheld and shall be deemed
given if Buyer should fail to approve or disapprove any proposed lease in
writing within five (5) working days following Seller's request for such action.
The cost to landlord of any leasing commissions and/or tenant improvements
payable in connection with the lease of any portion of the Real Property which
becomes effective at any time during the Contract Period shall be prorated
between Buyer and Seller, based on the initial term of the lease, as of the
Closing Date. Buyer shall be responsible for all such costs for any leases
commencing after the Closing Date.
(c) Between Seller's execution of this Agreement and the Closing Date,
Seller shall maintain the Property in the normal course of business subject to
Seller's obligations under the Lease, reasonable wear and tear excepted.
(d) Seller shall, without any cost or expense to Seller, use
commercially reasonable efforts to obtain the Tenant Estoppel prior to the
Closing Date.
Section 4.3 Buyer's Warranties and Representations. Buyer hereby
represents and warrants to Seller that (a) Buyer and any entity to which Buyer
may assign this Agreement pursuant to Section 7.4 below have, and as of the
Closing Date shall have, full power and lawful authority to enter into and carry
out the terms and conditions of this Agreement and to execute and deliver all
documents which are contemplated by this Agreement, and (b) all actions
necessary to confer such power and authority upon the persons executing this
Agreement and all documents which are contemplated by this Agreement to be
executed on behalf of Buyer or its assignee have been taken.
Section 4.4 Limitations. The parties agree that (a) Seller's warranties
and representations contained in this Agreement and in any document (including
any certificate) executed by Seller pursuant to this Agreement shall survive
Buyer's purchase of the Property only for a period of six (6) months after the
Closing Date (the "Limitation Period"), and (b) Buyer shall provide actual
written notice to Seller of any breach of such warranties or representations and
shall allow Seller thirty (30) days within which to cure such breach, or, if
such breach cannot reasonably be cured within thirty (30) days, an additional
reasonable time period up to a maximum of sixty (60) days, so long as such cure
has been commenced within such thirty (30) days and diligently pursued. If
Seller fails to cure such breach after actual written notice and within such
cure period, Buyer's sole remedy shall be an action at law for damages as a
consequence thereof, which must be commenced, if at all, within the Limitation
Period; provided, however, that if within the Limitation Period Buyer gives
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Seller written notice of such a breach and Seller commences to cure and
thereafter terminates such cure effort, Buyer shall have an additional thirty
(30) days from the date of such termination within which to commence an action
at law for damages as a consequence of Seller's failure to cure. The Limitation
Period referred to herein shall apply to known as well as unknown breaches of
such warranties or representations; and provided, further, notwithstanding
anything to the contrary contained in Section 7.15 below, and except for
Seller's intentional misrepresentation, if Buyer obtains knowledge prior to the
Closing Date of any breach of Seller's representations and warranties, buyer's
sole remedy shall be to terminate this Agreement upon written notice to Seller
and receive a refund of Deposit.
ARTICLE 5
ESCROW AND CLOSING
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Section 5.1 Escrow Arrangements. An escrow for the purchase and sale
contemplated by this Agreement has been opened by Seller with Title Company
under its escrow number 110002. On or before the Closing Date, Seller and Buyer
shall deliver joint escrow instructions to the Title Company consistent with
this Article 5 and the parties shall deposit in escrow the funds and documents
described below.
(a) Buyer shall deposit or cause to be deposited:
(i) the balance of the cash portion of the Purchase Price
("Seller's Funds"), plus sufficient cash to pay Buyer's share of all
escrow costs, prorations and closing expenses as set forth in Section
5.3 and 5.4 below;
(ii) a counterpart Assignment of Lease (as defined in
subparagraph (b)(iv) below), duly executed by Buyer; and
(iii) a duly executed closing certificate in the form attached
to this Agreement as Exhibit E (the "Closing Certificate").
(b) Seller shall deposit:
(i) a duly executed and acknowledged deed to the Real Property
in the form attached to this Agreement as Exhibit F (the "Deed");
(ii) a duly executed assignment of Seller's interest in the
Intangible Property in the form attached to this Agreement as Exhibit G
(the "General Assignment");
(iii) a duly executed bill of sale in the form attached to
this Agreement as Exhibit H (the "Bill of Sale");
(iv) a counterpart Assignment by Seller and assumption by
Buyer of Seller's interest in the Lease affecting the Property as of
the Closing Date in the form attached hereto as Exhibit I (the
"Assignment of Lease"), duly executed by Seller;
(v) a certificate from Seller certifying the information
required by Section 1445 of the Internal Revenue Code and the
regulations issued thereunder to establish, for the purposes of
avoiding Buyer's tax withholding obligations, that Seller is not a
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"foreign person" as defined in Internal Revenue Code Section 1445(f)(3)
in the form attached to this Agreement as Exhibit J (the "FIRPTA
Certificate"); and
(vi) the duly executed Tenant Notice (as defined in Section
5.7 below).
Section 5.2 Title Company's Duties and Closing. Seller and Buyer shall
instruct Title Company to close escrow on the Closing Date by:
(a) Recording all documents as may be necessary to clear title in
accordance with the requirements of this Agreement;
(b) Recording the Deed and the Assignment of Lease, in that order, and,
if applicable, instructing the Collin County Recorder not to affix the amount of
any documentary or transfer taxes to the Deed but to attach a separate statement
to the Deed after recording;
(c) Paying all closing costs and making all prorations in accordance
with Sections 5.3 and 5.4 of this Agreement and a closing statement of
adjustments and prorations prepared by Title Company and approved by Buyer and
Seller prior to the Closing Date (the "Closing Statement");
(d) Delivering to Buyer the Title Policy; Title Company's certified
Closing Statement; conformed copies of the Deed and the Assignment of Lease
showing available recordation information (collectively, the "Recorded
Documents"), an original of each of the Bill of Sale, the General Assignment and
the FIRPTA Certificate and copies of all other documents deposited into Escrow;
and
(e) Delivering to Seller the Purchase Price, plus or minus closing
adjustments and prorations, Title Company's certified Closing Statement,
conformed copies of the Recorded Documents, an original of each of the
Assumption Agreement, the Bill of Sale, the General Assignment and the Closing
Certificate and copies of all other documents delivered to Title Company.
Section 5.3 Closing Costs. Seller and Buyer shall each pay one-half of
(a) the escrow fee charged by Title Company and (b) any other miscellaneous
closing costs. Seller shall pay the local governmental documentary transfer or
transaction taxes or fees due on the transfer of the Property from Seller to
Buyer, the cost of a standard form owner's policy of title insurance and the
cost of the survey. Buyer shall pay the recording costs for this transaction,
the cost of the environmental reports, if any, obtained by Buyer pursuant to
Section 2.4 above and, if Buyer desires a policy of title insurance different
from that specified in Section 3.l(a)(ii) above -- for example, ALTA coverage or
any endorsements, Buyer shall pay the extra premium for such policy and
endorsements. Each party shall pay its own attorneys' fees.
Section 5.4 Prorations.
(a) Real property taxes and assessments, personal property taxes (if
any), rent (whether prepaid or applicable to the current rental period) and all
other items of income and expense with respect to the Property shall be prorated
between Seller and Buyer as of the Closing Date. Buyer shall be responsible for
all leasing commissions and the cost to landlord of tenant improvements
attributable to periods after the Closing Date for all leases executed during
the Contract Period as set forth in Section 4.2(b). Buyer shall receive a credit
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in escrow in the amount of any deposits under the Lease or any portion thereof,
which are in Seller's possession and refundable to the tenant as of the Closing
Date plus the amount of any prepaid rent for periods from and after the Closing
Date. Buyer shall not be entitled to any interest on such deposits which may
have accrued prior to the Closing Date unless such interest, under the terms of
the Lease, accrues for the benefit of the tenant. Seller shall receive a credit
in escrow for any refundable deposits and/or bonds held by any utility,
governmental agency or service contractor with respect to the Property. Any rent
collected by Buyer after the Closing Date shall be applied first to pay any rent
then due and owing for any period prior to the Closing Date, and Buyer shall
remit such amounts immediately upon receipt to Seller, and then to pay any rent
owing for any period after the Closing Date. If either Buyer or Seller receives
any revenues attributable to the period during which it is not the owner of the
Property, said party shall promptly forward such amounts to the other party (if
such revenues are only partially attributable to the period during which said
party is not the owner of the Property, the amount paid to the other party shall
be based upon proration as of the Closing Date as set forth above). Buyer shall
use its best efforts to collect and assist Seller in collecting any revenue
which is owed to Seller as of the Closing Date or which comes due thereafter.
(b) Buyer and Seller shall cooperate to produce on or before the
Closing Date a schedule of prorations which is as complete and accurate as
reasonably possible. All prorations which can be reasonably estimated as of the
Closing Date shall be made in escrow on the Closing Date. All other prorations
and any adjustments to initial estimated prorations, shall be made by Buyer and
Seller within thirty (30) days following the Closing Date or such later time as
may be required, in the exercise of due diligence, to obtain the necessary
information for proration. Any net credit due one party from the other as a
result of such post-closing prorations and adjustments shall be paid to the
other in cash immediately upon the parties' written agreement to a final
schedule of post-closing adjustments and prorations.
Section 5.5 Closing Date. The Closing Date shall occur on a date
mutually agreed upon by Buyer and Seller, which shall be not later than fifteen
(15) days after the end of the Inspection Period.
Section 5.6 Insurance. Seller's existing liability and property
insurance pertaining to the Property shall be canceled as of the Closing Date,
and Seller shall receive any premium refund due thereon.
Section 5.7 Tenant Notice. Upon Closing, Seller shall execute and
deliver to Buyer a notice to the tenant under the Lease in the form attached
hereto as Exhibit K (the "Tenant Notice").
Section 5.8 Delivery of Original Documents. Seller agrees to deliver to
Buyer on or immediately following the Closing Date the original Lease and all
service contracts, plans and specifications, plot plans, surveys, soils reports
and other original documents in Seller's possession pertaining to the Property.
Section 5.9 Filing of Reports. Title Company shall be solely
responsible for the timely filing of any reports or returns required pursuant to
the provisions of Section 6045(e) of the Internal Revenue Code of 1986 (and any
similar reports or returns required under any state or local laws) in connection
with the closing of the transaction contemplated in this Agreement.
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ARTICLE 6
DEPOSIT
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Buyer has previously deposited in the escrow established with Title
Company for this transaction cash in the amount of $50,000. Within two (2)
working days following expiration of the Inspection Period, Buyer shall deposit
in escrow the additional sum of $50,000 in cash or certified funds. Title
Company shall invest all funds so deposited in an interest-bearing
cash-management account reasonably acceptable to Buyer and Seller. The funds so
deposited and all interest thereon are referred to collectively as the
"Deposit." In the event the sale of the Property is not consummated because of
the failure of any condition or any other reason except a default under this
Agreement on the part of Buyer, the Deposit plus interest accrued thereon shall
immediately be returned to Buyer. In the event that (a) the conditions precedent
set forth in Section 3.1 above shall have been satisfied or waived, (b) Seller
shall have performed fully or tendered performance of its obligations hereunder
and (c) Buyer shall be unable or fail to perform its obligations hereunder, then
the entire amount of the Deposit shall be retained by Seller.
BUYER AND SELLER HEREBY ACKNOWLEDGE AND AGREE THAT SELLER'S DAMAGES IN
THE EVENT OF SUCH A BREACH OF THIS AGREEMENT BY BUYER WOULD BE DIFFICULT OR
IMPOSSIBLE TO DETERMINE, THAT THE AMOUNT OF THE DEPOSIT IS THE PARTIES' BEST AND
MOST ACCURATE ESTIMATE OF THE DAMAGES SELLER WOULD SUFFER IN THE EVENT THE
TRANSACTION PROVIDED FOR IN THIS AGREEMENT FAILS TO CLOSE, AND THAT SUCH
ESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS
AGREEMENT. BUYER AND SELLER AGREE THAT SELLER'S RIGHT TO RETAIN THE DEPOSIT
SHALL BE THE SOLE REMEDY OF SELLER AT LAW IN THE EVENT OF A BREACH OF THIS
AGREEMENT BY BUYER. SUCH RETENTION OF THE DEPOSIT IS NOT INTENDED AS A
FORFEITURE OR PENALTY, BUT INSTEAD, IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES
TO SELLER.
ACCEPTED AND AGREED TO:
/s/ Kevin M. Howley /s/ Peter Michael
-------------------- -----------------
Seller Buyer
In the event that this transaction is consummated as contemplated by this
Agreement, then the entire amount of the Deposit shall be credited against the
Purchase Price. The entire amount of the Deposit shall be returned immediately
to Buyer in the event that (a) the conditions precedent set forth in Section 3.1
above shall have been satisfied or waived, (b) Buyer shall have performed fully
or tendered performance of its obligations hereunder and (c) Seller shall be
unable or fail to perform its obligations under this Agreement.
11
<PAGE>
ARTICLE 7
MISCELLANEOUS
-------------
Section 7.1 Damage or Destruction.
(a) Subject to the provisions of subsection (b) below, Buyer shall be
bound to purchase the Property for the Purchase Price as required by the terms
of this Agreement without regard to the occurrence during the Contract Period of
any damage to or destruction of the Improvements ("Contract Period Damage").
Buyer shall receive a credit in escrow in the amount of any insurance proceeds
(net of reasonable costs incurred in securing such proceeds) collected by Seller
prior to the Closing Date as a result of any Contract Period Damage and not
expended by Seller on repair, replacement or restoration of the Property
pursuant to subsection (c) below. Seller promptly shall deliver to Buyer any
such insurance proceeds as shall be collected by Seller following the Closing
Date.
(b) Notwithstanding the foregoing, if the cost of repair, replacement
or restoration of the Property attributable to any Contract Period Damage
exceeds Two Hundred Thousand Dollars ($200,000), either party may elect to
terminate this Agreement by written notice to the other given not more than ten
(10) days following the event of damage or destruction and not later than one
day prior to the Closing Date. If the Contract Period Damage arises out of an
uninsured risk, Seller shall elect, by written notice given within such 10-day
period, either to terminate this Agreement or to close escrow as contemplated in
this Agreement with a reduction in the Purchase Price equal to the cost of
repair, replacement or restoration of the Property. Upon termination of this
Agreement pursuant to this paragraph, Seller shall return to Buyer the Deposit.
In the event neither party timely elects to terminate this Agreement pursuant to
this subsection, the provisions of subsection (a) above shall be applicable.
(c) Upon the occurrence of any Contract Period Damage, Seller may, but
shall not be obligated to, use any insurance proceeds collected with respect to
such Contract Period Damage to repair, replace or restore the Property to the
extent reasonably feasible prior to the Closing Date. Seller's election to
commence the repair, replacement or restoration of the Property prior to the
Closing Date shall in no way imply that Seller has made any representation or
warranty with respect to any work performed in connection with such repair,
replacement or restoration ("Seller's Repairs"). The plans, materials, choice of
contractor and all other material aspects of the performance of Seller's Repairs
shall be subject to Buyer's review and approval (which shall not be unreasonably
withheld) and to the general disclaimer set forth in Section 2.3 above. In the
event that Buyer does not approve any aspect of Seller's Repairs in writing
within five (5) days following Seller's request for such approval, Seller may,
at its option, terminate this Agreement by written notice delivered to Buyer on
or before the Closing Date.
(d) Notwithstanding anything in this Agreement to the contrary, the
insurance proceeds to be credited or delivered to Buyer pursuant to this Section
7.1 shall exclude business interruption or rental loss insurance proceeds, if
any, allocable to the period through the Closing Date, which proceeds shall be
retained by Seller.
Section 7.2 Brokerage Commissions and Finder's Fees. Each party to this
Agreement warrants to the other (and Buyer also warrants to Seller's general
partner) that no person or entity can properly claim a right to a real estate
12
<PAGE>
commission, real estate finder's fee, real estate acquisition fee or other real
estate brokerage-type compensation (collectively, "Real Estate Compensation")
based upon the acts of that party with respect to the transaction contemplated
by this Agreement, except for Damon Raike and Company, whose commission shall be
paid by Seller pursuant to a separate agreement. Each party hereby agrees to
indemnify and defend the other against and to hold the other harmless from (and
Buyer also agrees to indemnify and defend Seller's general partner and SSR (as
defined in Section 7.14(a)(iii)) against and to hold them harmless from) any and
all loss, cost, liability or expense (including but not limited to attorneys'
fees and returned commissions) resulting from any claim for Real Estate
Compensation by any person or entity based upon such acts or from payment of
Real Estate Compensation to any person by Buyer or by any entity affiliated with
Buyer. Seller or its general partner may pay Real Estate Compensation to an
Affiliate (as defined in Section 7.14(a)(i)) of SSR.
Section 7.3 Leasing Commissions. Seller shall indemnify, protect,
defend and hold Buyer harmless from and against any leasing commissions payable
in connection with the current term of the Lease (specifically excluding
therefrom any commission for option periods, renewal periods, extension periods
or waivers of termination rights or as otherwise provided in Section 4.2(b)
above). Buyer shall indemnify and hold Seller harmless from and against any
other leasing commissions relating to the Property.
Section 7.4 Successors and Assigns. Buyer shall not assign any of
Buyer's rights or duties hereunder without the prior written consent of Seller,
which consent Seller may grant or withhold in its sole and absolute discretion.
Notwithstanding the foregoing, Buyer may assign a portion of its rights
hereunder, with prior written notice to Seller (but without necessity of
Seller's prior written consent), to 309 Corp., a California corporation;
provided, however, in no event shall Buyer be released from any of its
obligations or liabilities hereunder. Subject to the foregoing, this Agreement
shall inure to the benefit of and be binding upon the parties hereto and their
successors and assigns.
Section 7.5 Notices. All written notices required to be given pursuant
to the terms hereof shall be either (i) personally delivered, (ii) deposited in
the United States mail, registered or certified return receipt requested,
postage prepaid, (iii) sent by Federal Express or similar nationally recognized
overnight courier service, or (iv) transmittal by facsimile with a hard copy
sent within one (1) business day by any of the foregoing means, and addressed as
follows:
To Seller: c/o SSR Realty
One California Street, Suite 1400
San Francisco, California 94111
Attn: Minton J. Newell
Fax No: (415) 678-2291
Phone No: (415) 678-2000
13
<PAGE>
with a copy to: SSR Realty
One California Street, Suite 1400
San Francisco, California 94111
Attn: Herman H. Howerton, Esq.
Fax No.: (415) 678-2296
Phone No.: (415) 678-2135
and a copy to: Morrison & Foerster LLP
755 Page Mill Road
Palo Alto, California 94304-1018
Attn: Philip J. Levine, Esq.
Fax No.: (650) 494-0792
Phone No.: (650) 813-5613
To Buyer: Fifty-Eight Acres, Inc.
220 Bush Street, Suite 1940
San Francisco, CA 94104
Attn: Peter Michael
Fax No: (415) 398-2584
Phone No: (415) 765-0900
with a copy to: Steve Englert
Epstein & Englert
44 Montgomery Street, Suite 1300
San Francisco, CA 94104
Fax No.: (415) 398-6938
Phone No.: (415) 398-2200
The foregoing addresses may be changed from time to time by written
notice. Notices shall be deemed received upon the earlier of actual receipt or
delivery (or refusal to accept delivery) or three (3) working days following
sending as provided above.
Section 7.6 Time. Time is of the essence of every provision contained
in this Agreement.
Section 7.7 Possession. Possession of the Property shall be delivered
to Buyer on the Closing Date, subject to then existing tenancies.
Section 7.8 Incorporation by Reference. All of the exhibits attached to
this Agreement or referred to herein and all documents in the nature of such
exhibits, when executed, are by this reference incorporated in and made a part
of this Agreement.
Section 7.9 No Deductions or Off-Sets. Buyer acknowledges that the
Purchase Price to be paid for the Property pursuant to this Agreement is a net
amount and shall not be subject to any off-sets or deductions.
14
<PAGE>
Section 7.10 Attorneys' Fees. In the event any dispute between Buyer
and Seller should result in litigation, the prevailing party shall be reimbursed
for all reasonable costs incurred in connection with such litigation, including,
without limitation, reasonable attorneys' fees.
Section 7.11 Construction. The parties acknowledge that each party and
its counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any amendments or exhibits hereto.
Section 7.12 No Merger. The provisions of this Agreement shall not
merge with the delivery of the Deed but shall, except as otherwise provided in
this Agreement, survive the close of escrow.
Section 7.13 Governing Law. This Agreement shall be construed and
interpreted in accordance with and shall be governed and enforced in all
respects according to the laws of the State of Texas.
Section 7.14 Disclosure of Information.
(a) Certain Definitions. For purposes of this Section 7.14, the
following terms shall have the respective meanings assigned to them in this
subsection (a):
(i) "Affiliate" shall mean: any person or entity directly or
indirectly controlling, controlled by or under common control with the
subject person or entity; any person or entity owning or controlling
10% or more of the outstanding voting securities of the subject entity;
any officer, director or partner of the subject entity; and any entity
for which the subject person or entity acts in the capacity of officer,
director or partner;
(ii) "Buyer Group" shall mean Buyer and its Affiliates, and
the directors, officers, employees, partners, agents and
representatives of such parties;
(iii) "SSR" shall mean SSR Realty, an Illinois general
partnership and/or any of its Affiliates; and
(iv) "Disclosure Document" shall mean any offering circular,
prospectus, report, advertisement, correspondence or other document
which names or refers in any manner, directly or indirectly, to SSR or
Seller or a general partner of Seller.
(b) Restrictions on Disclosure. Buyer agrees that, unless Buyer has
obtained the prior written consent of Seller, Buyer shall not release, publish
or otherwise distribute, and shall not authorize or permit any person or entity
(including without limitation any member of the Buyer Group) to release, publish
or otherwise distribute, to any person or entity other than SSR, any Disclosure
Document.
(c) Indemnification. Buyer and Buyer's principals shall indemnify and
hold harmless SSR and Seller, and all directors, officers, employees, partners,
agents and representatives of such parties, against and from any and all
liability, losses, damages, costs and obligations whatsoever (including without
limitation attorneys fees and costs) which arise out of or relate in any way to
the release, publishing or other distribution of any Disclosure Document by
15
<PAGE>
Buyer or by any person or entity (including without limitation any member of the
Buyer Group) whom Buyer has authorized or permitted to release, publish or
otherwise distribute such Disclosure Document.
Section 7.15 Damages. Buyer agrees that any liability of Seller under
any claim brought prior to the Closing Date pursuant to this Agreement or any
document or instrument delivered simultaneously or in connection with, or
pursuant to this Agreement, shall be limited solely to the Property, and no
other assets of Seller shall be subject to levy or execution. With respect to
any such claim brought following the Closing Date, any liability of Seller shall
not exceed $750,000 in amount and shall be satisfied solely out of the assets of
Seller. In no event shall Buyer seek satisfaction for any such obligation from
any of the general or limited partners or agents of Seller or any of their
directors, officers, employees, partners, agents, advisors, investment managers
or representatives. Buyer specifically waives any right to seek specific
performance of Seller's obligations under this Agreement and acknowledges that
its only remedy in the event of a breach of this Agreement by Seller shall be
the right (as limited by this Section 7.15) to seek money damages at law.
Section 7.16 Termination without Breach. In the event either party
desires to exercise any right expressly provided in this Agreement to terminate
this Agreement, such party shall give written notice of such termination and the
reason therefor to the other party. Thereafter, except in the event of a
termination based upon a default by either party in the performance of its
obligations under this Agreement, and effective as of the effective date of such
notice, each party shall be released from its obligations hereunder and all
monies and documents deposited into Escrow shall be returned to the party which
deposited them, all documents delivered by Seller to Buyer relating to the
Property shall be returned and all reports, studies, analyses and tests prepared
by or for Buyer relating to the Property shall immediately be delivered to
Seller; provided, however, that nothing herein shall limit Buyer's indemnity set
forth in Section 2.3(b) and 7.14(c) hereof.
Section 7.17 Counterparts. This Agreement may be executed in one or
more counterparts. All counterparts so executed shall constitute one contract,
binding on all parties, even though all parties are not signatory to the same
counterpart.
Section 7.18 Entire Agreement. This Agreement and the attached
exhibits, which are by this reference incorporated herein, and all documents in
the nature of such exhibits, when executed, contain the entire understanding of
the parties and supersede any and all other written or oral understanding,
including, without limitation, the Letter of Intent.
Section 7.19 Severability. If any provision of this Agreement, or the
application thereof to any person, place, or circumstance, shall be held by a
court of competent jurisdiction to be invalid, unenforceable or void, the
remainder of this Agreement and such provisions as applied to other persons,
places and circumstances shall remain in full force and effect.
Section 7.20 Cooperation. Seller and Buyer shall cooperate and do all
acts as may be reasonably required or requested by the other with regard to the
fulfillment of any condition precedent or the consummation of the transactions
contemplated hereby including execution of any documents, applications or
permits.
16
<PAGE>
Section 7.21 1031 Exchange.
(a) Seller agrees to reasonably cooperate with Buyer to facilitate a
1031 exchange transaction in connection with Buyer's acquisition of the Property
(the "Exchange"), provided that such cooperation shall be at no cost or expense
to Seller. The accomplishment of the Exchange shall not be a condition to
Buyer's or any exchange party's obligations to buy the Property under this
Agreement ("Exchange Party"), and Exchange Party's failure to locate an exchange
property or to consummate the Exchange for any reason shall in no way relieve
Buyer or Exchange Party of their obligation to timely buy the Property from
Seller pursuant to the terms and provisions of this Agreement. Seller shall have
no obligation to make any representation or warranty with respect to the
Property or otherwise do any act or deliver any document which could result in
Seller having any liability.
(b) Buyer shall indemnify, defend (with counsel reasonably satisfactory
to Seller) and hold Seller harmless from any and all claims, damages,
liabilities, losses, costs and expenses, including, without limitation,
attorneys' fees and costs (collectively, "Losses") suffered or incurred by
Seller as a result of or in connection with Seller's participation in the
Exchange described herein to the extent that any such Losses would not have been
suffered or incurred if the transaction described herein had been structured as
a direct sale rather than as an exchange. The foregoing indemnity shall survive
beyond the Closing, or, if the sale is not consummated, beyond the termination
of this Agreement.
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of
the day and year first written above.
BUYER: FIFTY-EIGHT ACRES, INC.
a California corporation
By: /s/ Peter Michael
-----------------
Its: President
---------
SELLER: METRIC REAL ESTATE, L.P.,
a California limited partnership
By: /s/ Kevin M. Howley
-------------------
Its: President
---------
17
<PAGE>
FIRST AMENDMENT TO PURCHASE AGREEMENT
-------------------------------------
THIS FIRST AMENDMENT TO PURCHASE AGREEMENT ("Agreement") is dated as of
October 14, 1997, by and between METRIC REAL ESTATE, L.P., a California limited
partnership ("Seller"), FIFTY EIGHT ACRES, INC., a California corporation
(Original Buyer"), and 309 CORP., a California corporation ("Assignee Buyer")
RECITALS:
A. Original Buyer and Seller entered into that certain Purchase Agreement
September 2, 1997 (the "Purchase Agreement"), for the purchase and sale of
certain more particularly described in the Purchase Agreement.
B. Thereafter, pursuant to paragraph 7.4 of the Purchase Agreement, Original
Buyer assigned an undivided fifty-percent (50%) interest in its rights and
obligations under the Purchase Agreement to Assignee Buyer, Original Buyer
retained the remaining undivided fifty percent (50%) interest in the Purchase
Agreement.
C. Seller, Original Buyer, and Assignee Buyer previously extended the Closing
Date to October 15, 1997, through a letter signed by Seller, Original Buyer, and
Assignee Buyer, which letter was dated September 23, 1997.
D. Seller, Original Buyer, and Assignee Buyer now desire to amend and modify the
Purchase Agreement, as amended by the September 23, 1997 letter, under the terms
and conditions contained herein, including without limitation, to provide for
(i) and extension of the Closing Date.
E. Any terms not defined herein shall have the meaning set forth in the Purchase
Agreement.
TERMS AND CONDITIONS
NOW, THEREFORE, the parties hereto for and in consideration of the
mutual promises and covenants herein, agree to amend and modify the Purchase
Agreement as Follows:
1. Closing Date
Section 5.5 of the Purchase Agreement is hereby amended to provide for
a Closing Date of October 24, 1997.
2. Miscellaneous
(a) The effective date of this Amendment shall be October 14, 1997.
18
<PAGE>
(b) This Amendment may be signed in counterparts and all counterparts
so executed shall constitute one contract, binding on all parties hereto, even
though all parties are not signatory to the same counterpart. The parties agree
that the exchange of counterpart signatures by facsimile shall be effective to
bind the parties hereto.
(c) If any provisions of this Amendment conflict with any portion of
the Purchase Agreement or the September 23, 1997 letter referenced in Recital
"C" above, the terms of this Amendment shall govern.
(d) Except as expressly amended and modified herein, the Purchase
Agreement is and remain in full force and effect in accordance with its forms.
IN WITNESS WHEREOF the parties herein have executed this Agreement as
of the Date first above written.
SELLER:
METRIC REAL ESTATE, L.P.,
a California limited partnership
By: MR, Inc., a California corporation
its general partner
By: /s/ Kevin Howley
----------------
Kevin Howley
Its: President
ORIGINAL BUYER:
FIFTY-EIGHT ACRES, INC.,
a California corporation
By: /s/ Peter Z. Michael
--------------------
Peter Z. Michael
Its: President
ASSIGNEE BUYER:
309 CORP.,
a California corporation
By: /s/ Edward Topham
-----------------
Edward Topham
Its: President
19
<PAGE>
EXHIBIT A
---------
Title Report
------------
Commitment for Title Insurance Issued by Chicago Title Insurance Company,
effective June 10, 1997, Issued June 26, 1997, not included with this Amendment.
The Registrant agrees to provide the Securities and Exchange Commission copies
of said Title Report upon request.
20
<PAGE>
EXHIBIT B
---------
Legal Description
-----------------
BEING all that tract of land in the City of Plano, Collin County, Texas, a part
of the Samuel Klepper Survey, Abstract No. 216, and being all of Lot 3R, Block 1
of Collin Creek Village-Tract "D", ad Addition to the City of Plano as recorded
in Cabinet I, Pages 221 and 222, Collin County Plat Records, being a Replat of
Collin Creek Village-Tract D, Block 1, Lot 2 and 3, and being further described
as follows:
BEGINNING at a P.K. nail in concrete found at the northeast corner of said Lot
3R, said point being in the west line of Accent Drive (a 80 foot wide
right-of-way);
THENCE along the west line of Accent Drive as follows:
South 01 degrees 25 minutes 24 seconds East, 50.00 feet to a 1/2 inch iron rod
found for corner;
Southwesterly, 312.78 feet along a curve to the right which has a central angle
of 32 degrees 35 minutes 00 seconds, a radius of 550.00 feet a tangent of 160.74
feet, and whose chord bears South 14 degrees 52 minutes 06 seconds West, 308.58
feet to a 1/2 inch iron rod found for corner;
Southwesterly, 249.23 feet along a curve to the left which has a central angle
of 22 degrees 40 minutes 00 seconds, a radius of 630.00 feet, a tangent of
126.27 feet, and whose chord bears South 19 degrees 49 minutes 36 seconds West,
247.61 feet to a 1/2 inch iron rod found for corner;
Southwesterly, 169.96 feet along a curve to the right which has a central angle
of 17 degrees 34 minutes 09 seconds, a radius of 554.26 feet, a tangent of 85.65
feet, and whose chord bears South 17 degrees 16 minutes 40 seconds West, 169.29
feet to a 1/2 inch iron rod found at the southeast corner of said Lot 3R;
THENCE North 45 degrees 00 minutes 00 seconds West, 497.72 feet to the southwest
corner of said Lot 3R, said point being in the center of Spring Creek;
THENCE along the west line of said Lot 3R and along the center of Spring Creek
as follows;
North 40 degrees 39 minutes 00 seconds East, 10.23 feet to a point for corner;
North 50 degrees 24 minutes 00 seconds East, 97.00 feet to a point for corner;
North 15 degrees 44 minutes 00 seconds East, 81.00 feet to a point for corner;
North 14 degrees 16 minutes 00 seconds West, 234.76 feet to a point for corner;
North 27 degrees 14 minutes 00 seconds East, 3.32 feet to the northwest corner
of said Lot 3R;
THENCE North 88 degrees 34 minutes 36 seconds East, 517.27 feet along the north
line of said Lot 3R to the POINT OF BEGINNING and containing 259,857 square feet
or 5.966 acres of land.
21
<PAGE>
EXHIBIT C
---------
List of Due Diligence Items
---------------------------
Recent Property Tax Bill
Preliminary Title Report With Recorded Documents
Current Tenant's Lease
Existing Permits in Seller's possession
Any Plans and Specifications in Seller's possession
Survey of Property
Phase I Study in Seller's Possession
22
<PAGE>
EXHIBIT D
---------
Inquiry Memorandum
------------------
TO: LEGAL PROPERTY MANAGEMENT
----- -------------------
Herman H. Howerton, Managing Director, Don Barnett, Senior Property Manager
General Counsel
PORTFOLIO MANAGEMENT Portfolio Accounting
-------------------- --------------------
Rich Faber, Portfolio Manager Sherie Kidwell, Accounting Manager
Ted Koros Portfolio Manager
Lorenz Menrath, Director of
Portfolio Management
RISK MANAGEMENT cc:. Philip J. Levine, Esq.
---------------
George Fogelsong,
Risk Manager
FROM: Minton J. Newell
DATE: September 8, 1997
RE: Internal Due Diligence
Haverty's Furniture Store, Plano, TX
Metric Real Estate, L.P.
RESPONSE MANDATORY
------------------
================================================================================
Pursuant to the proposed Agreement for Purchase and Sale Agreement by and
between METRIC REAL ESTATE, L.P. ("Seller"), and Fifty-Eight Acres, Inc.
("Buyer") we are required to provide a certification to the Buyer relative to
our knowledge of certain conditions which may affect the properties.
Please carefully read and review the attached. They are the pages from the
contract which outline the covenants, 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 Marlene Weber. If you have no such knowledge, please advise accordingly.
Please send your signed copy of this statement to Marlene Weber. We must have
your response by Thursday, September 11, 1997.
23
<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 except as noted below.
EXCEPTIONS: NONE
Printed Name: Printed Name: Printed Name:
Herm H. Howerton Richard Faber Lorenz Menrath
- ---------------- ------------- --------------
Signature: Signature: Signature:
/s/ Herm H. Howerton /s/ Richard Faber /s/ Lorenz Menrath
- -------------------- ----------------- ------------------
Date: Date: Date:
9/8/97 9/8/97 9/8/97
- ------ ------ ------
Printed Name: Printed Name: Printed Name:
George M. Foglesong Sherie Kidwell Theodore P. Koros
- ------------------- -------------- ------------------
Signature: Signature: Signature:
/s/ George M. Foglesong /s/ Sherie Kidwell /s/ Theodore P. Koros
- ----------------------- ------------------ ---------------------
Date: Date: Date:
9/8/97 9/8/97 9/8/97
- ------ ------ ------
24
<PAGE>
ATTACHMENT
----------
Minton J. Newell, the authorized agent of Seller ("Agent"), based
solely upon inquiry, by means of the Inquiry Memorandum attached to this
Agreement as Exhibit C (the "Inquiry Memorandum"), of the individuals listed
thereon, each of whom responded to such Inquiry Memorandum, and without any
independent investigation or further inquiry, has no Actual Knowledge (as
defined below), as of the date hereof, except as specifically set forth in
Exhibit C-1 attached hereto and incorporated herein by reference, that:
(i) Seller has received any written notice from any
governmental authorities that eminent domain proceedings for the
condemnation of the Real Property are pending;
(ii) Seller has received any written notice of any threatened
or pending litigation against Seller which would materially and
adversely affect the Real Property;
(iii) Seller has received any written notice from any
governmental authority that the improvements located on the Real
Property are presently in violation of any applicable building codes;
or
(iv) Seller has received any written notice from any
governmental authority that Seller's use of the Real Property is
presently in violation of any applicable zoning, environmental, land
use or other law, order, ordinance, rule or regulation affecting the
Real Property.
As used in this Section the phrase "Actual Knowledge" shall refer only to the
current actual knowledge of Minton J. Newell and shall not be construed, by
imputation or otherwise, to refer to the knowledge of Seller or of any officer,
director, agent, manager, representative, employee or advisor of Seller, or of
any advisor to Seller, or any officers, directors or employees of any advisor or
its affiliates, or impose upon Minton J. Newell any duty to inquire into or
investigate the matter to which such actual knowledge, or absence thereof,
pertains.
EXHIBIT D-1
-----------
SCHEDULE OF EXCEPTIONS
TO
REPRESENTATIONS AND WARRANTIES
[NONE]
25
<PAGE>
EXHIBIT E
---------
BUYER'S CLOSING CERTIFICATE
---------------------------
THIS BUYER'S CLOSING CERTIFICATE ("Certificate") is made and entered
into as of this ____ day of October, 1997 by FIFTY-EIGHT ACRES, INC., a
California corporation ("Fifty-Eight"), and 309 CORP., a California corporation
("309") (Fifty-Eight and 309 are sometimes hereinafter collectively referred to
as "Buyer"), to and for the benefit of METRIC REAL ESTATE, L.P., a California
limited partnership ("Seller"), under and pursuant to the terms of that certain
Agreement for Purchase and Sale of Real Property dated as of September 2, 1997
between Seller and Buyer (the "Agreement"). All words and phrases having their
initial letters capitalized in this Certificate and not specifically defined
herein shall have their meanings set forth in the Agreement.
As a condition to closing of the transaction contemplated in the
Agreement and as a material and substantial inducement to Seller to sell and
convey the Property to Buyer, Buyer hereby confirms, certifies and agrees as
follows:
1. Buyer hereby acknowledges and agrees that Buyer (a) has concluded
whatever studies, tests, and investigations Buyer desired to conduct relating to
the Property including, without limitation, economic reviews and analyses, soils
tests, engineering analyses, environmental analyses and analysis of any
applicable records of the planning, building, public works or any other
governmental or quasi-governmental entity having or asserting jurisdiction over
the Property; (b) has reviewed and read (or has elected not to do so) and has
understood all instruments affecting the Property and/or its value which Buyer
deems relevant, including, without limiting the generality of the foregoing, all
documents referred to in the Title Report and all leases, operating statements,
demographic studies and market analyses; (c) and its consultants have made all
such independent studies, analyses and investigations, as Buyer has deemed
necessary, including, without limitation, those relating to environmental
matters and the leasing, occupancy and income of the Property; (d) is relying
solely on its own investigations as to the Property and its value and is
assuming the risk that adverse physical, economic or other conditions
(including, without limitation, adverse environmental conditions (including,
without limitation, soils and groundwater conditions) and status of compliance
with the requirements of the Americans With Disabilities Act of 1990) may not
have been revealed by such investigation; and (e) that Seller has given Buyer
every opportunity to consider, inspect and review to its satisfaction the
physical, environmental, economic and legal condition of the Property and all
files and information in Seller's possession which Buyer deems material to the
purchase of the Property.
2. Buyer hereby further acknowledges and agrees that (a) Seller has not
made and has specifically disclaimed the making of any representations or
warranties, express or implied, regarding the Property or its value or matters
affecting the Property, including, without limitation, the physical condition of
the Property, title to or the boundaries of the Real Property, pest control
matters, soil condition, hazardous waste, toxic substance or other environmental
matters, compliance with the Americans With Disabilities Act of 1990 or other
building, health, safety, land use and zoning laws, regulations and orders,
structural and other engineering characteristics, traffic patterns and all other
information pertaining to the Property, (b) Seller did not develop or construct
the Real Property, (c) Buyer entered into the Agreement and is closing the
26
<PAGE>
contemplated transaction with the intention of making and relying upon its own
investigation of the physical, environmental, economic and legal condition of
the Property, (d) Buyer is not relying upon any representations and warranties,
other than those specifically set forth in Section 4.1 in the Agreement, made by
Seller or anyone acting or claiming to act on Seller's behalf concerning the
Property or its value.
3. Buyer further acknowledges that it has not received from Seller any
accounting, tax, legal, architectural, engineering, property management or other
advice with respect to this transaction and is relying solely upon the advice of
its own accounting, tax, legal, architectural, engineering, property management
and other advisors. Buyer agrees and confirms that the Property is being
purchased by and accepted by Buyer in its "AS IS" condition and WITH ALL FAULTS
on the Closing Date and assumes the risk that adverse physical, environmental,
economic or legal conditions may not have been revealed by its investigation.
4. Except with respect to any claims arising out of any breach of
covenants, representations or warranties set forth in Sections 4.1 or 4.2 of the
Agreement, Buyer, for itself and its agents, affiliates, successors and assigns,
hereby releases and forever discharges Seller, its agents, partners, affiliates,
successors and assigns from any and all rights, claims and demands at law or in
equity, whether known or unknown at the time of this agreement, which Buyer has
or may have in the future, arising out of the physical, environmental, economic
or legal condition of the Property.
5. Buyer hereby specifically acknowledges that Buyer has carefully
reviewed this Certificate and discussed its import with legal counsel and that
the provisions of this Certificate are a material and substantial inducement to
Seller to consummate the transaction contemplated in the Agreement.
6. This Certificate may be executed in one or more counterparts, all of
which shall constitute one contract, binding on all parties, even though all
parties are not signatory to the same counterpart.
IN WITNESS WHEREOF, Buyer has executed and delivered this Certificate
as of the date and year first set forth above.
BUYER: FIFTY-EIGHT ACRES, INC., a California corporation
By: /s/ Peter Z. Michael
--------------------
Peter Z. Michael
Its: President
309 CORP., a California corporation
By: /s/ Edward Topham
-----------------
Edward Topham
Its: President
27
<PAGE>
EXHIBIT F
---------
WARRANTY DEED
-------------
97-0089669
4023 1666
STATE OF TEXAS ss.
ss. KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF COLLIN ss.
THAT METRIC REAL ESTATE, L.P. a California limited partnership whose
address is c/o SSR Realty, One California Street, Suite 1400, San Francisco, San
Francisco County, CA 94111, Attn: Minton J. Newell, (hereinafter referred to as
"Grantor"), for and in consideration of the sum of TEN AND NO/100 DOLLARS
($10.00) and other good and valuable consideration, to the undersigned in hand
paid by FIFTY-EIGHT ACRES, INC. and 309 CORP., the receipt of which is hereby
acknowledged, has GRANTED, SOLD, and CONVEYED, and by these presents does GRANT,
SELL, and CONVEY unto the said Fifty-Eight Acres, Inc., a California
Corporation, whose address is 220 Bush Street, Suite 1940, San Francisco, San
Francisco County, CA 94104, Attn: Peter Michael and 309 Corp, a California
corporation, whose address is 220 Bush Street, Suite 1940, San Francisco, San
Francisco County, CA 94014, Attn: Edward Topham, (hereinafter referred to as
"Grantees") All of Grantor's right, title, and interest, in and to the following
described real property lying and situated in Collin County, Texas, to wit:
Those certain lots, blocks, tracts or parcels of land more particularly
described in Exhibit "A" attached hereto and incorporated herein by
reference (hereinafter referred to as the "Property"). The Property
shall also be deemed to include all interest, if any, of Grantor's in
(I) strips or gores, if any, between the Property and abutting
properties, (ii) all of Grantor's interest, if any, in property lying
in or under the bed of any street or road, opened or proposed, stream,
river,or easement abutting or adjacent to the Land, and (iii) all
mineral interest underlying the property.
This conveyance is made and accepted subject to (i) the lien for
general real estate taxes on the property hereby conveyed for the current year;
(ii) zoning laws, regulations and ordinances of municipal and other governmental
authorities, if any affecting the property hereby conveyed; and (iii) any and
all valid restrictions, easements and other encumbrances described in Exhibit
"B" attached hereto and incorporated herein by reference.
Current ad valorem taxes on the property hereby conveyed having been
prorated, Grantees hereby assume the payment thereof.
28
<PAGE>
A portion of the consideration for the conveyance is the execution and
delivery by Grantees of one certain promissory note (hereinafter referred to as
the "Vendor's Lien Note") of even date herewith in the original principal sum of
One Million Nine Hundred Thousand and no/100 Dollars ($1,900,000), bearing
interest as therein provided, payable to the order of Modern Woodmen of America
("Lender"), which Vendor's Lien Note represents cash advanced by Lender for a
portion of the purchase price of the property conveyed hereby, the principal and
interest thereof being payable as therein provided, and the payment of which
Vendor's Lien Note is secured by a prior and superior Vendor's Lien herein
retained by Grantor for the benefit of Lender against the property herein
conveyed located in Collin County, Texas, and which Vendor's Lien is hereby
assigned to Lender without recourse against and without warranty by Grantor and
said Vendor's Lien Note is additionally secured, inter alia, by a first lien
Deed of Trust of even date herewith to David Lawrence, Trustee, describing the
property conveyed hereby
TO HAVE AND TO HOLD the above described premises, subject to noted
exceptions, together with all and singular the rights and appurtenances thereto
in anywise belonging unto the said Grantees, their heirs, successors and assigns
forever; and Grantor does hereby bind its heirs, successors and assigns to
WARRANT AND FOREVER DEFEND all and singular the said premises, subject to the
noted exceptions, unto the said Grantees, their heirs, successors and assigns,
against every person whomsoever lawfully claiming, or to claim any part thereof.
EXECUTED this 17 day of October 1997.
METRIC REAL ESTATE, L.P., a
California limited partnership
By: MR, Inc., a California corporation,
General Partner
By: /s/ Kevin Howley
----------------
Kevin Howley, President
29
<PAGE>
THE STATE OF CALIFORNIA ss.
ss.
COUNTY OF SAN FRANCISCO ss.
This instrument was acknowledged before me on the 17th day of October,
1997, by Kevin Howley, the President of MR, Inc., a California corporation,
acting as general partner of Metric Real Estate, L.P.
Notary Seal
-----------
MARLENE WEBER
Commission #1111760
Notary Public - California
San Francisco County
Comm. Expires Sep 16 2000
----------------------------
My Commission Expires: Notary Public, State of California
9/18/00
Marlene Weber
30
<PAGE>
EXHIBIT A
---------
(LEGAL DESCRIPTION)
BEING all that tract of land in the City of Plano, Collin County, Texas, a part
of the Samuel Klepper Survey, Abstract No. 216, and being all of Lot 3R, Block 1
of Collin Creek Village-Tract "D", ad Addition to the City of Plano as recorded
in Cabinet I, Pages 221 and 222, Collin County Plat Records, being a Replat of
Collin Creek Village-Tract D, Block 1, Lot 2 and 3, and being further described
as follows:
BEGINNING at a P.K. nail in concrete found at the northeast corner of said Lot
3R, said point being in the west line of Accent Drive (a 80 foot wide
right-of-way);
THENCE along the west line of Accent Drive as follows:
South 01 degrees 25 minutes 24 seconds East, 50.00 feet to a 1/2 inch iron rod
found for corner;
Southwesterly, 312.78 feet along a curve to the right which has a central angle
of 32 degrees 35 minutes 00 seconds, a radius of 550.00 feet a tangent of 160.74
feet, and whose chord bears South 14 degrees 52 minutes 06 seconds West, 308.58
feet to a 1/2 inch iron rod found for corner;
Southwesterly, 249.23 feet along a curve to the left which has a central angle
of 22 degrees 40 minutes 00 seconds, a radius of 630.00 feet, a tangent of
126.27 feet, and whose chord bears South 19 degrees 49 minutes 36 seconds West,
247.61 feet to a 1/2 inch iron rod found for corner;
Southwesterly, 169.96 feet along a curve to the right which has a central angle
of 17 degrees 34 minutes 09 seconds, a radius of 554.26 feet, a tangent of 85.65
feet, and whose chord bears South 17 degrees 16 minutes 40 seconds West, 169.29
feet to a 1/2 inch iron rod found at the southeast corner of said Lot 3R;
THENCE North 45 degrees 00 minutes 00 seconds West, 497.72 feet to the southwest
corner of said Lot 3R, said point being in the center of Spring Creek;
THENCE along the west line of said Lot 3R and along the center of Spring Creek
as follows;
North 40 degrees 39 minutes 00 seconds East, 10.23 feet to a point for corner;
North 50 degrees 24 minutes 00 seconds East, 97.00 feet to a point for corner;
North 15 degrees 44 minutes 00 seconds East, 81.00 feet to a point for corner;
North 14 degrees 16 minutes 00 seconds West, 234.76 feet to a point for corner;
North 27 degrees 14 minutes 00 seconds East, 3.32 feet to the northwest corner
of said Lot 3R;
THENCE North 88 degrees 34 minutes 36 seconds East, 517.27 feet along the north
line of said Lot 3R to the POINT OF BEGINNING and containing 259,857 square feet
or 5.966 acres of land.
NOTE: COMPANY DOES NOT REPRESENT THAT THE ABOVE AVREAGE AND/OR SQUARE FOOTAGE
CALCULATIONS ARE CORRECT.
31
<PAGE>
EXHIBIT B
---------
1. Restrictive covenants contained in Volume 2287, Page 672, Land
Records, Collin County, Texas
2. Lease Agreement between Rosewood Real Estate Investments, Inc., as
Lessor, and Haverty Furniture Company, 2 Inc., as Lessee, dated
February 17, 1993.
3. Lease Agreement between Lyda Hunt-Caroline trusts, as Lessor, and
General Cinema Corp. of Texas, as Lessee, dated October 4, 1985.
4. Easement granted by Lyda Hunt-Caroline Trusts to City of Plano, dated
October 3, 1984, filed for record on October 3, 1984 and recorded in
Vol. 1994, Page 449, Land Records, Collin County, Texas.
5. The sanitary sewer easements, fire lane, utility and access easements,
TU Electric easements, drainage and utility easements, drainage and
floodway easement, and water easements and access easements detailed
in the Plat recorded in Cabinet I, Slide 221, Map Records, Collin
County, Texas.
32
<PAGE>
EXHIBIT G
---------
Form of General Assignment
--------------------------
ASSIGNMENT OF CONTRACTS AND INTANGIBLE PROPERTY
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby expressly acknowledged, METRIC REAL ESTATE, L.P., a California limited
partnership ("Assignor"), hereby assigns, transfers and conveys to FIFTY-EIGHT
ACRES, INC., a California corporation ("Original Buyer"), and to 309 CORP., a
California corporation, the assignee of a fifty-percent (50%) undivided interest
in that certain Agreement for Purchase and Sale of Real Property dated September
2, 1997, by and between Assignor and Original Buyer (collectively, the Original
Buyer and 309 CORP. are hereinafter referred to "Assignee"), all of Assignor's
right, title and interest in and to the Intangible Property, as that term is
defined in that certain Agreement for Purchase and Sale of Real Property (the
"Agreement") dated September 2, 1997 entered into by and between Assignor, as
Seller, and Assignee, as Buyer.
Assignee hereby assumes and agrees to keep, perform and fulfill all of
Assignor' s obligations as obligor under any contracts included in Intangible
Property under the Agreement (the "Assigned Contracts"), including without
limitation, the service contracts listed on Exhibit A attached hereto. Assignee
also agrees to indemnify, protect, defend and hold Assignor harmless from and
against any and all claims, damages, losses, costs and expenses (including
attorneys' fees) arising in connection with the Assigned Contracts and relating
to the period after Closing.
Assignor hereby covenants and warrants that it has performed all of the
obligations to be performed by Assignor pursuant to and in accordance with, or
with respect to, the Assigned Contracts and agrees to indemnify, protect, defend
and hold Assignee harmless from and against any and all claims, damages, losses,
costs and expenses (including attorneys' fees) arising in connection with the
Assigned Contracts and relating to the period prior to Closing.
33
<PAGE>
This General Assignment is given pursuant to the Agreement, and may be
executed in one or more counterparts, all of which shall constitute one
contract, binding on all parties, even though all parties are not signatory to
the same counterpart.
IN WITNESS WHEREOF, Assignor and Assignee have executed this General
Assignment as of October _____, 1997.
ASSIGNOR:
METRIC REAL ESTATE, L.P.,
a California limited partnership
By: MR, Inc., a California corporation
its general partner
By: /s/ Kevin Howley
----------------
Kevin Howley
Its: President
ASSIGNEE:
FIFTY-EIGHT ACRES, INC.,
a California corporation
By: /s/ Peter Z. Michael
--------------------
Peter Z. Michael
Its: President
309 CORP.,
a California corporation
By: /s/ Edward Topham
-----------------
Edward Topham
Its: President
EXHIBIT A
[NONE]
34
<PAGE>
EXHIBIT H
---------
Form of Bill of Sale
--------------------
Bill of Sale not executed.
35
<PAGE>
EXHIBIT I
---------
Recording Requested By and
When Recorded Mail To:
Stephen Englert
Epstein & Englert
44 Montgomery Street, Suite 1300
San Francisco, CA 94104
- ----------------------------------------
Space Above This Line For Recorder's Use
ASSIGNMENT OF LEASE
This ASSIGNMENT is entered into this ____ day of October, 1997, by and
between METRIC REAL ESTATE, L.P., a California limited partnership ("Assignor"),
and FIFTY-EIGHT ACRES, INC., a California corporation, and 309 CORP., a
California corporation (collectively, "Assignee").
RECITALS
--------
A. Assignor is the landlord under that certain lease described on
Schedule 1 attached hereto (the "Lease") relating to that certain real property
described in Schedule 2 attached hereto and commonly known as Haverty's
Furniture Store, City of Plano, Texas (the "Property").
B. Assignor and Assignee are parties to that certain Purchase and Sale
Agreement dated as of September 2, 1997, pursuant to which Assignor has agreed
to sell and Assignee has agreed to purchase the Property and Assignor has agreed
to assign and Assignee has agreed to assume the Lease (the "Purchase
Agreement").
For valuable consideration, receipt of which is acknowledged, Assignor
and Assignee agree as follows:
1. Assignor assigns to Assignee all of the right, title and interest of
Assignor in the Lease.
2. Assignee assumes as of and from the date hereof all of Assignor's
obligations under the Lease.
3. Assignee agrees to indemnify and hold Assignor harmless from and
against any and all losses, costs, liabilities, damages and expenses including,
without limitation, reasonable attorneys' fees, accruing on or after the date
hereof and arising out of the Lease.
36
<PAGE>
4. Assignor agrees to indemnify and hold Assignee harmless from and
against any and all losses, costs, liabilities, damages and expenses including,
without limitation, reasonable attorneys' fees, accruing prior to the date
hereof and arising out of the Lease.
5. If Assignor or Assignee is required to employ counsel to enforce any
of the terms of this Agreement or for damages by reason of any alleged breach of
this Agreement or for a declaration of rights hereunder, the prevailing party
shall be entitled to recover its reasonable attorneys' fees and court costs
incurred.
6. This Assignment shall be binding on, and inure to the benefit of,
the parties hereto, their successors in interest, and assigns.
7. This Assignment may be executed in one or more counterparts, all of
which shall constitute one contract, binding on all parties, even though all
parties are not signatory to the same counterpart.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
as of the day and year first hereinabove written.
Assignee: FIFTY-EIGHT ACRES, INC., a California Corporation
By: /s/ Peter Z. Michael
--------------------
Peter Z. Michael
Its: President
309 CORP., a California corporation
By: /s/ Edward Topham
-----------------
Edward Topham
Its: President
Assignor: METRIC REAL ESTATE, L.P., a California
limited partnership
By: MR, Inc., a California corporation
its general partner
By: /s/ Kevin Howley
----------------
Kevin Howley
Its: President
37
<PAGE>
STATE OF California )
)
COUNTY OF San Francisco )
On October 13, 1997, before me, Marlene Weber, personally appeared
Kevin Howley, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity (ies), and that by his/her/their signature
on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Seal
-----------
MARLENE WEBER
Commission #1111760
Notary Public - California
San Francisco County
Comm. Expires Sep 16 2000 /s/ Marlene Weber
-----------------
Notary Public
On October 14, 1997, before me, the undersigned, personally appeared Edward
Topham, personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature on
the instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Notary Seal
-----------
MARY A. HART
Commission #1062473
Notary Public - California
Marin County
Comm. Expires June 18, 1999 /s/ Mary A. Hart
----------------
Notary Public
38
<PAGE>
STATE OF California )
)
COUNTY OF San Francisco )
On October 14, 1997, before me, the undersigned, personally appeared Peter Z.
Michael, personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity (ies), and that by his/her/their signature on
the instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Notary Seal
-----------
MARY A. HART
Commission #1062473
Notary Public - California
Marin County
Comm. Expires June 18, 1999 /s/ Mary A. Hart
----------------
Notary Public
SCHEDULE 1
Schedule of Lease(s)
TENANT DATE OF LEASE
- ------ -------------
Haverty's Furniture Store October 10, 1988, as amended June 22, 1993
39
<PAGE>
SCHEDULE 2
----------
(LEGAL DESCRIPTION)
BEING all that tract of land in the City of Plano, Collin County, Texas, a part
of the Samuel Klepper Survey, Abstract No. 216, and being all of Lot 3R, Block 1
of Collin Creek Village-Tract "D", ad Addition to the City of Plano as recorded
in Cabinet I, Pages 221 and 222, Collin County Plat Records, being a Replat of
Collin Creek Village-Tract D, Block 1, Lot 2 and 3, and being further described
as follows:
BEGINNING at a P.K. nail in concrete found at the northeast corner of said Lot
3R, said point being in the west line of Accent Drive (a 80 foot wide
right-of-way);
THENCE along the west line of Accent Drive as follows:
South 01 degrees 25 minutes 24 seconds East, 50.00 feet to a 1/2 inch iron rod
found for corner;
Southwesterly, 312.78 feet along a curve to the right which has a central angle
of 32 degrees 35 minutes 00 seconds, a radius of 550.00 feet a tangent of 160.74
feet, and whose chord bears South 14 degrees 52 minutes 06 seconds West, 308.58
feet to a 1/2 inch iron rod found for corner;
Southwesterly, 249.23 feet along a curve to the left which has a central angle
of 22 degrees 40 minutes 00 seconds, a radius of 630.00 feet, a tangent of
126.27 feet, and whose chord bears South 19 degrees 49 minutes 36 seconds West,
247.61 feet to a 1/2 inch iron rod found for corner;
Southwesterly, 169.96 feet along a curve to the right which has a central angle
of 17 degrees 34 minutes 09 seconds, a radius of 554.26 feet, a tangent of 85.65
feet, and whose chord bears South 17 degrees 16 minutes 40 seconds West, 169.29
feet to a 1/2 inch iron rod found at the southeast corner of said Lot 3R;
THENCE North 45 degrees 00 minutes 00 seconds West, 497.72 feet to the southwest
corner of said Lot 3R, said point being in the center of Spring Creek;
THENCE along the west line of said Lot 3R and along the center of Spring Creek
as follows;
North 40 degrees 39 minutes 00 seconds East, 10.23 feet to a point for corner;
North 50 degrees 24 minutes 00 seconds East, 97.00 feet to a point for corner;
North 15 degrees 44 minutes 00 seconds East, 81.00 feet to a point for corner;
North 14 degrees 16 minutes 00 seconds West, 234.76 feet to a point for corner;
North 27 degrees 14 minutes 00 seconds East, 3.32 feet to the northwest corner
of said Lot 3R;
THENCE North 88 degrees 34 minutes 36 seconds East, 517.27 feet along the north
line of said Lot 3R to the POINT OF BEGINNING and containing 259,857 square feet
or 5.966 acres of land.
NOTE: COMPANY DOES NOT REPRESENT THAT THE ABOVE AVREAGE AND/OR SQUARE FOOTAGE
CALCULATIONS ARE CORRECT.
40
<PAGE>
EXHIBIT J
---------
FIRPTA CERTIFICATE
------------------
To inform FIFTY-EIGHT ACRES, INC., a California corporation, and 309
CORP., a California corporation (collectively, "Transferee"), that withholding
of tax under Section 1445 of the Internal Revenue Code of 1986, as amended, and
any other applicable state or local laws or ordinances (collectively the
"Codes"), will not be required upon transfer of certain real property to
Transferee by METRIC REAL ESTATE, L.P., a California limited partnership
("Transferor"), the undersigned hereby certifies the following on behalf of
Transferor:
1. Transferor is not a foreign person, foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined in the
Codes and the Income Tax Regulations promulgated thereunder);
2. Transferor's U.S. employer identification/social security number is
as follows: 94-311-3449.
3. Transferor's office address is: c/o SSR Realty, One California
Street, Suite 1400, San Francisco, California 94111.
Transferor understands that this Certification may be disclosed to the
Internal Revenue Service by Transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Transferor understands that Transferee is relying on this Certification
in determining whether withholding is required upon said transfer.
Transferor hereby agrees to indemnify, protect, defend and hold
Transferee harmless from and against any and all obligations, liabilities,
claims, losses, actions, causes of action, rights, demands, damages, costs and
expenses of every kind, nature or character whatsoever (including, without
limitation, attorneys' and paralegals' fees and costs and court costs) incurred
by Transferee as a result of: (i) Transferor's failure to pay U.S. Federal
income tax which the Transferor is required to pay under applicable U.S. arising
in connection with the subject transaction; or (ii) any false or misleading
statement contained herein.
41
<PAGE>
Under penalty of perjury I declare that I have examined this
Certification and to the best of my knowledge and belief it is true, correct and
complete, and I further declare that I have authority to sign this document on
behalf of Transferor.
DATE: OCTOBER 21, 1997 METRIC REAL ESTATE, L.P., a California
limited partnership
By: MR, Inc., a California corporation
its general partner
By: /s/ Kevin Howley
----------------
Kevin Howley
Its: President
EXHIBIT K
---------
Form of Tenant Notice
---------------------
Form of Tenant Notice not executed.
EXHIBIT L
---------
Form of Tenant Estoppel
-----------------------
Form of Tenants Estoppel Certificate, Dated October 13, 1997, Amended in the
Release Agreement dated September 30, 1992 and First Modification of Retail
Lease dated June 22, 1993 not included with this Amendment. The Registrant
agrees to provide the Securities and Exchange Commission copies of said Title
Report upon request.
42
<PAGE>
Seller's Closing Statement
--------------------------
Seller's Closing Statement is not filed with this Amendment. Metric Income Trust
Series, Inc. agrees to provide the Securities and Exchange Commission copies of
said Seller's Closing Statement upon request.
Joint Exchange Instructions Delayed Exchange - Replacement Property #307729-A
-----------------------------------------------------------------------------
Joint Exchange Instructions Delayed Exchange, signed by Intermediary, Elaine A.
Westby, and Exchanger, Peter Z. Michael, is not filed with this Amendment.
Metric Income Trust Series, Inc. agrees to provide the Securities and Exchange
Commission copies of said Joint Exchange Instructions Delayed Exchange upon
request.
Assignment of Purchase Contract - Replacement Property #307729-A
and Notice of Assignment
------------------------
Assignment of Purchase Contract, signed by Assignee, Elaine A. Westby, and
Assignor, Peter Z. Michael, is not filed with this Amendment. Metric Income
Trust Series, Inc. agrees to provide the Securities and Exchange Commission
copies of said Assignment of Purchase Contract upon request.
Joint Exchange Instructions - Delayed Exchange Replacement Property #307730-A
-----------------------------------------------------------------------------
Joint Exchange Instructions, signed by Intermediary, Elaine A. Westby, and
Exchanger, Edward C. Topham, is not filed with this Amendment. Metric Income
Trust Series, Inc. agrees to provide the Securities and Exchange Commission
copies of said Joint Exchange Instructions upon request.
Assignment of Purchase Contract - Replacement Property #307730-A
and Notice of Assignment
------------------------
Assignment of Purchase Contract, Signed by Assignee, Elaine A. Westby, and
Assignor, Edward Topham, is not filed with this Amendment. Metric Income Trust
Series, Inc. agrees to provide the Securities and Exchange Commission copies of
said Assignment of Purchase Contract upon request.
Specific Assignment, Subordination, Non-disturbance and Attornment Agreement
----------------------------------------------------------------------------
Specific Assignment, Subordination, Non-disturbance and Attornment Agreement,
prepared by William J. Snyder and signed by Tenant R. Haverty, Borrower Peter Z.
Michael, Borrower Edward C. Topham, and Lender L. L. Schreiber, is not filed
with this Amendment. Metric Income Trust Series, Inc. agrees to provide the
Securities and Exchange Commission copies of said Specific Assignment,
Subordination, Non-disturbance and Attornment Agreement upon request.
43
